Chapter 1

Introduction

A.What Is the “Ethics” in Legal Ethics?

In one sense, the term “legal ethics” refers narrowly to the system of professional regulations governing the conduct of lawyers—the subject-matter tested by the Multistate Professional Responsibility Examination (MPRE). In a broader sense, however, legal ethics is a special case of ethics as understood in the central traditions of philosophy and religion. From this broader perspective, legal ethics cuts more deeply than legal regulation: It concerns the moral aspects of our lives as lawyers. As Socrates noted, the subject of ethics “is not about just any question, but about the way one should live.”1

An organizing premise of this book is that these two aspects of legal ethics cannot be separated. The study of codified ethical rules apart from broader ethical principles makes no sense; a code of professional conduct that ignored the moral commitments of those it governed would be doomed to irrelevance. On the other hand, an abstract study of legal ethics unconnected to the institutional and doctrinal basis of law practice would be equally ineffective. Our aim is to integrate both dimensions of analysis.

The study of legal regulations is a familiar part of the law school curriculum; to a certain extent, it is the law school curriculum. On the other hand, the study of ethics in the sense Socrates defined it forms the subject matter of moral philosophy, a discipline in which many lawyers, law students, and law teachers lack extended training. However, for our purposes, no such background is necessary: Most academic moral philosophy concerns theoretical issues that have little direct bearing on legal ethics, even in the broad, Socratic sense.

1.The Distinction Between Ethics and Morality

This is not to imply that the terms have always been interchangeable. Some theorists, including the prominent nineteenth century German philosopher Hegel, have reserved the word “ethics” to refer to the customary norms within a specific society—the society’s ethos.2 The term “morality,” on the other hand, is often used to refer to philosophical systems involving abstract universal norms of right and wrong.3 Immanuel Kant’s famous “categorical imperative”—“act so that you treat humanity . . . always as an end, and never as a means only”—is an example of such a universal moral principle.4 The categorical imperative, Kant believed, is valid at all times and in all cultures, and he offered a general argument for its truth.

This distinction between theory-based morality and custom-based ethics suggests a sharp separation between everyday judgments and philosophical theories. In fact, philosophical theories of morality generally reflect and reinforce strands of the culture’s dominant ethical norms and common-sense understandings. For example, Kant’s categorical imperative has two distinctive prescriptions, neither of which is peculiar to his philosophical system. First, Kant insists that the moral law applies to everyone: it speaks of “humanity” in general. Second, Kant instructs us to treat others as ends and not merely as means. The first injunction—to treat everyone, including those of other races, nationalities, or religions, with full moral consideration—is hardly an invention of academic philosophers. Similarly, in everyday life we often criticize people for “using” others merely as means to an end. What is distinctively philosophical about Kant’s approach is not its core moral insights, but the extended argument on which they are grounded. Because philosophical moral theories such as Kant’s overlap with customary ethical traditions (secular as well as religious), no general distinction between ethics and morality seems helpful.

There is, however, an important difference between accepting customary ethical beliefs on faith and subjecting them to critical reflection. Positive morality refers to the dominant moral traditions in a particular society. Critical morality involves a systematic examination of those traditions to determine whether they should be obeyed, modified, or abandoned. One of the most important functions of legal ethics is to offer critical scrutiny of the positive morality of legal practice. In the chapters that follow, conventional norms such as those regarding client loyalty, confidentiality, and access to legal services are subject to such reflection.

2.Moral Relativism

A related set of questions has to do with the basis of moral judgment. Values differ significantly within and across particular societies. From this fact, moral relativists argue that ethics are not universal, but rather relative to individuals or cultures.5 In its extreme form, relativism denies the possibility of generalizable moral judgments. This position is often rooted in healthy instincts of tolerance and humility. “Judge not, lest you be judged” counsels appropriate restraint in contexts of moral complexity.6

Yet almost no one—even those who claim to be relativists—accepts relativism in its most extreme form. If someone steals our property or betrays our friendship, it is natural to feel outraged. But pursued to its logical extreme, relativism can condemn such practices only if they violate the relativist’s own standards; and the relativist will have to concede that the thief or the treacherous friend may be justified according to his or her own standards. To find an action repugnant while insisting that others can justifiably pursue it is a feat that few of us are willing or able to perform.

Suppose, for example, that someone you regard as a close friend has taken your work and claimed it as his own, or has blamed you for dishonest acts that he committed. A true relativist would have to acknowledge that “I think it’s wrong, but maybe from his point of view what he did was justified. Who am I to say?” If such a response seems unsatisfying, that should tip us off that something is wrong with relativism. There is, moreover, an internal contradiction in relativists’ claim that because no universal moral standards exist, it is wrong to 5impose one’s own values. If there are no universal principles, by what criteria does the relativist claim that moral praise or blame are “wrong”?

Moreover, moral convictions are often less indeterminate than is commonly supposed. Those who engage in reflective decisionmaking frequently come to share certain basic moral premises. Given full information and an opportunity for dispassionate and disinterested judgment, individuals appear likely to agree about certain essential values, such as honesty, loyalty, benevolence, and avoidance of unnecessary harm. Some biologists and neuroscientists believe that certain moral dispositions and emotions have been adaptive for survival and are now hard wired into the brain.7 All known societies agree on many basic moral judgments, for example that doing a bad thing intentionally is worse than doing it by accident.8

Of course, disagreements often arise about how to apply broadly shared values or resolve conflicts between them in particular cases. However, much of the controversy surrounding moral issues involves disputes about facts, not principles. The same is true of most of the hotly contested questions of legal ethics. Lawyers disagree about exceptions to the duty of confidentiality not because they disagree about what values are important but because they disagree about what rules would best serve those values. Would requiring lawyers to disclose certain confidential information to protect third parties significantly erode client trust and candor? In the long run, would imposing greater disclosure obligations put lawyers in a position to prevent more or less harm?

Thus, we can remain sensitive to the dangers of moral arrogance without abandoning moral convictions. We can also sometimes acknowledge uncertainty about our moral judgments, particularly when the issues are complex or controversial. We can, however, attempt to think the matter through honestly, to consider opposing views, and to make allowances for influences that might distort our judgment. And why ask for more? We must often make decisions in the face of factual uncertainty, yet this does not make us relativists about facts. When we face a moral decision, we have no choice but to do what seems right to us, even though we recognize that we could be mistaken. After all, the alternative to acting on the judgment that seems best is acting on a judgment that seems worse.

3.Ethics and Law

In any event, many of the formal ethics rules leave the ultimate decision to the lawyer’s discretion. Thus, for example, the ABA’s Model Rules of Professional Conduct permit, but do not require, a lawyer to reveal confidential client information “to prevent reasonably certain death or substantial bodily harm.”9 Bar ethical rules permit, but do not require, a corporate lawyer to reveal confidences if the corporation’s highest authority insists on violating the law in a way that is likely to injure the corporation.10 They permit, but do not require, a lawyer to decline or withdraw from representation if the client insists on taking an action that the lawyer finds “repugnant.”11 They permit, but do not require, lawyers to include “moral, economic, social and political factors” in the advice they offer clients.12 They recommend, but do not require, that lawyers perform fifty hours annually of pro bono service.13 For these as well as many other issues that arise in legal practice, the law itself invites lawyers to consider their own moral values.

4.Moral Theories

Consequentialism judges the rightness or wrongness of actions based on their consequences. The most familiar consequentialist theory is utilitarianism, primarily as developed by Jeremy Bentham, John Stuart Mill, and Henry Sidgwick.14 In its most familiar form, utilitarianism evaluates actions on the basis of the happiness or welfare they create or the harm they inflict: utilitarians attempt to sum up these consequences, and recommend the action that creates the “greatest good for the greatest number.” From this perspective, an individual’s moral obligation is to choose a course of action that maximizes utility, or at least surpasses some threshold of utility.

Such approaches have two major limitations. One involves indeterminacy: it will often be extremely difficult to predict and weigh how one’s actions affect aggregate welfare. A second limitation is that, because consequentialists simply add together the gains and losses of society’s members, they can justify policies that benefit the many at the expense of the few. For this reason, critics often object that consequentialism cannot safeguard minority rights and is insensitive to the distribution of harms and benefits, a deficiency that other ethical theories seek to address.

Contemporary theories of consequentialism attempt to meet these and other objections with modifications and adjustments of the theory. One result is that today’s philosophical literature on consequentialism is often complex and technical.15 For our purposes, the most important points to keep in mind are simply (a) that moral consequences matter and (b) there are reasons to think that consequences may not be the only thing that matters.

Other theories are act-centered rather than consequence-centered. They are usually labeled deontological, a term derived from the Greek word for duty. Some actions may be right or wrong, permitted or forbidden, regardless of their consequences. Therefore it may be our duty to avoid wrong and do right, no matter what the consequences.

In a famous passage in The Brothers Karamazov, one of Dostoyevsky’s characters poses this challenge:

Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace 8and rest at last. Imagine that you are doing this but that it is essential and inevitable to torture to death only one tiny creature—that child beating its breast with its fist, for instance—in order to found that edifice on its unavenged tears. Would you consent to be the architect on those conditions? Tell me. Tell me the truth.16

For a utilitarian, this question is easy: To achieve happiness for millions of individuals one would of course torture a single child. But perhaps there is something suspect about a theory that makes this an easy question. There is much to be said for the principle that intentionally inflicting suffering on the innocent is wrong regardless of the consequences.

Immanuel Kant’s categorical imperative forbids us from using other individuals as a mere means, no matter how compelling the end. Kant, the best-known deontological philosopher, focused heavily on our duty to follow the categorical imperative.17 Duties lend themselves to codified rules, and in many countries codes of professional ethics are referred to as “deontologies.” Among contemporary deontologists, however, the focus has shifted from an emphasis on moral duties to an emphasis on moral rights. A modern proponent of deontological approaches would argue that the innocent child in Dostoyevsky’s fable has a moral right not to be tortured—an entitlement that overrides the gain in utility to humanity at large. In the words of philosopher Ronald Dworkin, rights “trump” utility.18

Of course, there is plenty of room for debate about what our moral rights are. Moreover, in defining the scope of moral rights, it may be important to take account of consequences. Thus, it is most accurate to think of deontology as a family of theories rather than as a single theory, which all rest on the view that consequences are not determinative.

A third group of theories are generally lumped together under the label virtue ethics. These theories focus on the character or virtue of the actor, rather than on the nature of the act or on its consequences. Aristotle’s Nicomachaean Ethics offered the first systematic expression of this approach. He focused on character and stressed the importance of certain key virtues, such as honesty, courage, temperance, and justice, along with the intellectual virtue of practical wisdom. In the Middle Ages, Christian moralists followed Aristotle’s approach, although they also recognized certain virtues, such as mercy, that were quite foreign to Greek thought. A number of contemporary legal ethicists have attempted 9to revive the Aristotelian tradition and have insisted that the most important questions of ethics concern character.19 In their view, it is important to focus on the development of individual moral judgment, rather than the reduction of morality to impersonal rules.20

To focus on virtue in legal ethics is to shift emphasis from the nature of particular actions and their consequences to the character of the lawyers who perform these actions. Under this approach, conduct is subject to praise or condemnation primarily on the grounds of what it reflects about the person; acts may be dishonest or forthright, extortionate or generous, disloyal or decent. Virtue ethicists point out that someone uncertain of the virtuous course of action might get more guidance from looking at a trusted ethical role model than from the principle of utility or the categorical imperative.21 Of course, even a virtuous lawyer can be perplexed about how to strike the right balance between competing values. Nor is a unified concept of character consistent with much contemporary research in psychology, neuroscience, and organizational behavior, which documents the situational nature of moral conduct and the extent to which contextual pressures can undermine individuals’ ethical commitments.22

According to such research, neither reason nor intuition always guides individuals to the most ethical course of action.23 In the words of Nobel Prize winner Daniel Kahneman, “thinking slow” and “thinking fast” both have their place.24 In some instances, reason allows us to step back and consider long-term consequences of impulsive self-interested behavior; in other contexts, it provides an opportunity to rationalize behavior that our initial instinct tells us is wrong. Such research indicates the need for lawyers to recognize their own moral fallibility and susceptibility to self-interest, and to build in triggers for internal and external checks on their conduct.

5.The Possibility of Pluralism

All of these approaches have something to recommend them; all are subject to significant limitations. To choose among them, it is helpful to 10reflect on what would make them useful under particular circumstances. The eminent philosopher John Rawls suggested that a moral theory should be tested against our “considered moral judgments”: those we would make on reflection, but before we begin to theorize. A useful moral framework offers principles that accommodate our considered moral judgments. These principles can then help revise our judgments. Our judgments thus modified may then assist in further refining our principles, and so on. Eventually, Rawls suggests, we should arrive at a “reflective equilibrium” between principles and judgments, in which neither requires further adjustment.25 This approach is consistent with recent work in cognitive psychology, which suggests that individuals generally arrive at moral decisions through intuitive responses, and then consider reasons that support or challenge their initial judgment.26

In practice, it may well be that different areas of our moral experience will fall into reflective equilibrium with different moral principles; some judgments may be best systematized by consequentialist theories, some by deontological theories, and some by theories of virtue. Cognitive psychology can also help reconcile our theoretical premises with moral practices. Although the objective of traditional philosophy was to produce unified theoretical frameworks, we have no reason to believe that our individual moral worlds are that tidy. According to many contemporary philosophers, our moral experience is, at its deepest level, pluralistic; no single framework is adequate to encompass all aspects of our moral life. As Anthony Appiah puts it, “my philosophy is that everything is more complicated than you thought. . . . The messiness of ethics goes down deep.”27 While we may look to moral theories for guidance, we still need to make intuitive judgments about which moral theory is most appropriate to the case at hand.

B.A Note on the Rules in This Text

Throughout this book, we will be referring to Rules of Professional Conduct. Textbooks generally cite to the American Bar Association’s Model Rules of Professional Conduct, and students are tested on the Model Rules in the Multistate Professional Responsibility Examination (MPRE). Indeed, accredited law schools are required to teach the Model Rules. Federal law grants the ABA accrediting authority over U.S. law schools, and the ABA has mandated that “A law school shall require all students in the J.D. program to receive . . . instruction in the Model Rules of Professional Conduct of the American Bar Association.”28

However, the ABA has also copyrighted the Model Rules, and it does not grant permission to reproduce the Model Rules in the text without also reproducing the sometimes-lengthy comments in full; permission is also conditioned on payment of a substantial fee. We think this is not a good use of your money (additional casebook pages and fees mean additional cost), because the comments are readily available on the Internet.

Once a state adopts a Model Rule into its own law, the language incorporated into the state rule enters the public domain.29 As it happens, the State of Delaware adopted almost all the Model Rules and their comments verbatim as its own Rules of Professional Conduct.30 Accordingly, in this book, except in a few cases when otherwise noted, all direct quotations from rule language are from the Delaware Rules of Professional Conduct. Whenever we quote from the Delaware Rules, it should be understood that the language is identical to the corresponding Model Rule. When we merely cite to a rule rather than quoting it, we will continue to cite to the Model Rules.31

Chapter 2

The American Legal Profession

A.The Concept of a Profession

The term “profession” is both elastic and elusive. Its meaning has varied considerably over time and across cultures, and has inspired continued debate among contemporary social theorists. The most common definition, reflected in a report by the American Bar Association (ABA) Commission on Professionalism, has stressed professionals’ special expertise and ethical responsibilities. Borrowing from an influential work by Roscoe Pound, former Dean of Harvard Law School, the Commission defined professionalism as the practice of a “learned art in the spirit of a public service.”1

The need for occupational groups with special knowledge and moral commitments has, in turn, been thought to account for other distinguishing features of professions, such as ethical codes, regulatory autonomy, prescribed forms of training, and a monopoly over certain services. According to sociologist Eliot Freidson, whose definition is quoted with approval by the ABA Commission, a profession is:

An occupation whose members have special privileges, such as exclusive licensing, that are justified by the following assumptions:

1.That its practice requires substantial intellectual training and the use of complex judgments.

2.That since clients cannot adequately evaluate the quality of the service, they must trust those they consult.

3.That the client’s trust presupposes that the practitioner’s self-interest is overbalanced by devotion to serving both the client’s interest and the public good, and

4.That the occupation is self-regulating—that is, organized in such a way as to assure the public and the 14courts that its members are competent, do not violate their client’s trust, and transcend their own self-interest.2

At the close of the 20th century, observers of the American legal profession declared that it was the “best of times and the worst of times” for lawyers.3 Members of the bar enjoy great power, wealth, and status. The number of lawyers has more than doubled (from about 650,000 to 1.3 million) over the last three decades.4 Law is among the highest-paying professions and a common path to leadership in both the public and private sectors. Yet that overall prosperity has been accompanied by increasing competition, economic insecurity, and pressure. Consumer demand has limited the bar’s ability to preempt competition by nonlawyers for certain law-related services. (Accounting firms have made especially threatening inroads on the profession’s traditional turf.) At the same time, globalization has brought more foreign competitors to American financial centers and has also encouraged clients to outsource business to offshore legal service providers.

Other dynamics have reduced the need for lawyers and intensified competition for the legal work that remains. Technology is displacing demand for many lawyers’ services.5 Artificial intelligence and online service providers such as LegalZoom “aren’t just eating [law firms’] lunch; they are eying breakfast and dinner as well.”6 As Richard Susskind has argued, the traditional customized model of lawyering is being replaced by commoditized legal work and the broader economy’s relentless pressure towards “more for less” will intensify this trend.7 So too, corporate clients, who are facing increased pressures in their own markets, have responded by curtailing legal costs. Businesses have moved more routine work in-house and parceled out more projects based on short-term competitive considerations rather than long-term lawyer-client relationships.

Escalating costs and competition have resulted in greater focus on the bottom line, and higher billable-hour requirements. In private practice, partnership means less and is harder to obtain. Recent law 15graduates face a tougher job market with higher debt burdens than their predecessors. Moreover, among practitioners who represent primarily individual rather than corporate clients, the demand for services is relatively weak, nonlawyer competition has increased, and average earnings are modest. The consequence has been widening income disparities within the profession, and exceptionally high rates of stress, depression, and substance abuse.8

Still, despite such challenges, law continues to be a path to leadership in the private, public, and nonprofit sectors. It also continues to offer a large number of lawyers an intellectual challenge, an opportunity for service, and a comfortable living. Also, to a much greater extent than other occupations, law gives its members significant control over their own regulation and workplace structures. To the extent that there are problems in the profession, lawyers have a unique opportunity to develop solutions.

B.History of the Profession

Although the term “profession” did not come into use until around the 16th century, individuals have been performing services that we would now associate with the legal profession for at least two thousand years. By the fourth century B.C., advocates were assisting parties in Greek tribunals and were involved in counseling and legislative work. However, these individuals did not form a cohesive “profession” in the sense we that now use the term. Training was informal, ethical standards were lax, and discipline was lacking.9

A somewhat more professionalized culture developed in early Rome. Between the first and third centuries A.D., legal advisors and advocates began to form communities around the courts in major cities. These groups attempted to standardize training and provide some disciplinary oversight, as well as to assist the development of a systematic jurisprudence.10

With the fall of the Holy Roman Empire, this professional tradition also declined. Early Anglo-Saxon methods of dispute resolution, particularly trials by ordeal, presented less need for trained advocates. However, in England, after the Norman conquerors imported certain innovations, including trial by jury, the usefulness of partisan assistance increased.11 During the 12th and 13th centuries, the foundations for a 16professional community began to emerge. This community was highly stratified, however, with different specialties having monopolies over certain functions and certain courts. Ultimately, the English bar divided into two groups. The most elite were the barristers, who provided trial representation and received training by attending one of several Inns of Court and then by serving as apprentices to practicing barristers. The remaining legal work was performed by solicitors, who were governed by rules of court and professional associations, supplemented by legislation. That division remains in contemporary Great Britain, although the boundaries have blurred over the last quarter-century, and areas of overlapping jurisdiction have increased.

By contrast, the American bar began without such formal stratification. Although the 17th and 18th centuries were not “friendly years for lawyers,” they were, as historian Lawrence Friedman puts it, “a necessary evil. . . . As soon as a settled society posed problems for which lawyers had an answer or at least a skill, lawyers began to thrive, despite the hostility.”12 Friedman notes that the profession grew rapidly in the late 18th and 19th centuries, and by 1900, there were over a hundred thousand practitioners. The American bar was a “nimble profession” and quickly adapted to the out of court needs of an evolving society. According to Friedman, “its nimbleness was no doubt due to the character of the bar: open-ended, unrestricted, uninhibited, attractive to sharp ambitious men.”13 During this early period, the bar tried to raise standards, “tried to limit entry into the field, and (above all) tried to resist conversion of the profession into a ‘mere’ business or trade.”14 The bar’s efforts were only partly successful, but lawyers did occupy a special status in American life, for reasons Alexis de Tocqueville famously highlighted during his visit to the early republic.

Alexis de Tocqueville, Democracy in America

Notes and Questions

1.Legal historian Robert Gordon notes that, in recent years, the profession has grown dramatically in size, specialization, and diversity, and that status and income differentials among practitioners have widened.15 What other changes have been most significant and what social, economic, and technological forces have helped account for these changes?

2.Historical research suggests that not all attorneys experienced being part of a natural aristocracy in the sense that de Tocqueville described. Accounts by frontier lawyers during the mid-19th century indicate that many practitioners were barely able to piece together a livelihood, and that much of their difficulty stemmed from the absence of public respect. Young attorneys often reported considerable difficulty in receiving payment for services they provided. As one struggling Texan wrote home to relatives, “I wish the fees came in half as fast as the cases.”16

Similarly, Joseph Baldwin, in his wry caricature, offered the following description of his legal community:

[T]hirty or forty young men . . . standing ready to supply any distressed citizen who wanted law. . . . I must confess [that the assistance] looked to me something like a swindle. . . . There was one consolation: the clients were generally as sham as the counselors. For the most part, they were either broke or in a rapid decline. They usually paid us the compliment of retaining us, but they usually retained the fee too, a double retainer we did not much fancy. However, we got as much as we were entitled to and something over. . . . The most that we made was experience . . . [in] quirks and quibbles . . . . 17

Does this portrait cast doubt on contemporary lawyers’ frequent complaint about the recent decline of law from a profession to a business?

Experts dispute the extent to which lawyers in the 19th and early 20th century had a more civic-minded conception of their professional role than contemporary practitioners. Some scholars argue that the American bar once 20embraced a more ethically robust view of the lawyer as statesman.18 Other experts believe that moral activism by 19th-century attorneys is vastly overstated, and that the notion of ethically neutral, client-centered advocacy was as widely accepted then as it is now.19 What turns on this dispute? Does the bar’s history inform contemporary debates?

C.The Structure of Contemporary Practice

Over the last century, the American bar has become increasingly fractured and specialized, and the work lives of lawyers in various fields are often quite different. In a landmark study of the Chicago bar, first published in 1980 and updated in 1998, sociologists John Heinz and Edward Laumann portrayed a profession sharply divided into two hemispheres. Most lawyers represented either individuals and small businesses or large organizations such as corporations, unions, and the government. Few ever “crossed the equator” and those serving corporations and large organizations generally were of a higher socioeconomic status.20

Accordingly, Heinz and Laumann argued that the traditional view of the bar as a single, unified profession no longer fit the facts.

[The lawyer who commutes to Brussels or Tokyo to negotiate international franchise agreements] will have little in common with the lawyer who haunts the corridors of the criminal courts hoping that a bailiff will, in return for a consideration, commend his services to some poor wretch charged with a barroom assault. Both of those private practitioners will differ from the government-employed lawyers who prosecute criminal cases or who practice public international law in the employ of the State Department, as the two sorts of government-employed lawyers differ from one another.21

In the 1998 update of their study, Heinz and Laumann found that the income gap between corporate and non-corporate practitioners had widened. Demand for services had grown more rapidly in the business sector, and by the late 1990s, about 60 percent of lawyers’ time was devoted to corporate clients compared with half in the 1970s. It thus appeared doubtful that the profession’s current organizational structures 21“provided enough interchange to produce a bar that functioned as a community of common pursuit.”22

A pathbreaking study of new lawyers by the American Bar Foundation and the National Association of Law Placement also provides a window into how the bar is evolving. The study, After the JD, is following a national cross-section of 5000 lawyers who all passed the bar in 2000. The study’s first report (AJD1) describes lawyers’ careers two to three years into practice.23 The second (AJD2) examines the trajectory of the lawyers’ careers after roughly seven years of practice, and the third (AJD3) reports on those careers after twelve years.24 According to AJD3, these lawyers are significantly more diverse than their predecessors: 50.4 percent are women, up from 5 percent in 1970, and 17.2 percent are nonwhite, compared to 5 percent in 1970. In terms of religious affiliation, 30 percent are Protestant, 27 percent Roman Catholic, 7 percent Jewish, and 23 percent report no religious affiliation. Most come from relatively privileged backgrounds. About two-thirds had fathers who graduated from college, and half had college-graduate mothers, a figure three times the national average.

In the third wave of the study, just under half (48.5 percent) were working in the private law firm sector, 28 percent were in the public sector, 20 percent were in business, and 3.5 percent were in “other” settings.25 More recent figures from the ABA and National Association of Law Placement suggest that immediately upon graduation, most lawyers go into private practice, about 10 to 13 percent land in business, 12 to 13 percent work for the government, 10 to 11 percent clerk, 12 percent entered the government, and 5 to 7 percent joined public interest organizations.26 The work lives of lawyers have also changed as workloads have increased. In AJD3 the median work week was forty-seven hours compared with forty hours for full-time American workers. However, roughly 15 percent of responding lawyers (most in large firms) reported working sixty hours a week or more.27 Complexity and specialization in work have also escalated. At the turn of the 20th century, most lawyers were generalists; now most are specialists and 22project managers.28 About three-quarters of the lawyers in AJD3 reported that at least half of their work is in a single substantive field.29 Job mobility has also increased. Within the first three years of practice, a majority of lawyers had changed jobs at least once, and in the next five years, a majority had changed jobs again.30

Notes and Questions

D.Diversity and Inclusion

1.Historical Frameworks: Gender, Race, and Ethnicity

During much of the 18th and 19th centuries, gender defined the geography of American life, and a woman’s primary place was in the domestic rather than the professional sphere. There were, however, exceptions to this general pattern. Particularly in the Colonial Era, when labor was scarce and relatively few occupations required formal licenses, some white women managed to participate in legal transactions either by acting as their husbands’ representatives or successors, or by obtaining special authorization to proceed as independent agents. Few of these women, however, managed to attain positions of significant public power or recognition, and those who did generally acquired an anomalous status. The first American female attorney was an “honorary male” in a literal as well as figurative sense; she was frequently addressed in person and in 17th-century court records as Gentleman Margaret Brent.31

During the late 18th century, the gradual formalization of bar admission criteria made it increasingly difficult for women to act as lawyers. And, of course, African American women under slavery had no capacity to assert legal rights. However, after the Civil War, the expansion of women’s educational opportunities and political activism contributed to a growing stream of female applicants to the bar. In 1867, 23Iowa became the first state to license a woman attorney, and the following decades witnessed a gradual increase in female candidates from largely white middle- and upper-middle-class backgrounds.

Women’s initial reception in most jurisdictions was less than enthusiastic. In a celebrated 1873 decision denying Myra Bradwell admission to the Illinois bar, three concurring Supreme Court Justices invested the sexes’ “separate spheres” with both spiritual and constitutional significance:

The family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong[s], or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.32

Although the precise method of divine communication was never elaborated, it remained accessible to other decisionmakers as well. Judges in Wisconsin, Pennsylvania, and the District of Columbia similarly concluded that women’s nature was to nurture, and that any professional pursuits constituted a departure from the natural order and “when voluntary, treason against it.”33 As one late 19th-century judge explained, the “peculiar qualities of womanhood, its gentle graces, its quick sensibility, [and] its tender susceptibility” were surely not qualifications for “forensic strife.”34

Many female applicants, however, remained unconvinced. By the turn of the century, various political, legal, and social forces had coalesced to secure women’s rights to admission in about half the states, and by 1920, formal barriers were largely removed. Informal obstacles, however, remained. “Bring on as many women lawyers as you choose,” predicted one District of Columbia judge, “I do not believe they will be a success.”35 Clarence Darrow agreed. As he explained in an early 20th-century address to a group of Chicago women attorneys: “You can’t be shining lights at the bar because you are too kind. You can never be corporation lawyers because you are not cold-blooded. You have not a high grade of intellect.” Although conceding that female practitioners 24might be acceptable as counsel for divorce and nonpaying criminal cases, he doubted that women would “ever make a living” in the law.36

Such attitudes became self-fulfilling prophecies. Female professionals who rejected their maternal mission were typically treated as social deviants, but women who restricted work to raise families were denounced for squandering educational opportunities that should be reserved for full-time male breadwinners. Many bar associations and law schools denied female applicants or limited their admission. Harvard Law School remained all-male until 1950 and not until 1972 did all accredited law schools eliminate explicit sex-based restrictions.37 Substantial disparities also prevailed in hiring, salaries, and promotion. Private firms frequently declined to employ women, and almost no rationalization was too trivial. As one Wall Street partner explained to a female applicant, much as his firm would like to hire a woman, the logistical difficulties were simply too great: she couldn’t use the attorneys’ bathroom; she couldn’t be relegated to the secretaries’ bathroom; and the firm couldn’t afford to build another facility.38 In 1960, women constituted less than 3 percent of the American bar, and were largely excluded from fields of practice with the greatest status, influence, and financial rewards.39

Major changes came with the rise of the contemporary women’s movement and the broader social, economic, and demographic changes that it reflected. By 1983, women constituted over a third of new entrants to the profession, and by the turn of the century, about half.40 But as subsequent discussion indicates, their position remains far from equal.

Barriers of race and ethnicity have been similarly significant. In the late 19th and early 20th centuries, many employers, educators, and bar associations openly discriminated against immigrants from Eastern Europe and Asia, as well as Jews from all ethnic backgrounds.41 A 1939 report found that Jewish lawyers accounted for half the practitioners in New York City, but few were working in corporate firms; the exceptions were mainly in firms with predominantly Jewish clients.42

Racial discrimination has been particularly pervasive and persistent. Although the first black lawyer was admitted to the bar in 251844 (Macon Allen, Maine), few blacks had any realistic possibility of bar membership until after the Civil War. The family of the first black to graduate from a law school (George Ruffin, Harvard, 1869) came from Virginia, where it had been a crime to teach any black person to read.43 Discriminatory admission policies, inadequate educational backgrounds, and lack of financial resources restricted access to law school, and the small number of lawyers of color restricted opportunities for apprenticeships. At the turn of the 20th century, there were only about 730 black lawyers in the entire country.44 Once admitted to the bar, minority lawyers faced continued resistance from potential employers and clients. Few firms were willing to hire lawyers of color, and African Americans who could afford the services of an attorney often hired whites, who were assumed to function more effectively in a racist legal system.

Barriers to women of color were especially great. Access to higher educational and professional programs was extremely limited, and the few institutions that did not discriminate on the basis of race often did so on the basis of sex. Charlotte Ray, one of the first black women to graduate from law school (Howard, 1873), gained admittance by using her initials rather than first name on application papers. After an unsuccessful struggle to obtain legal work, she returned to her earlier career of teaching in public schools. Between 1875 and 1925, no more than twenty-five black women were reportedly practicing law. By 1940, the number had only doubled.45

In 1890, when the census first began classifying by race, black lawyers constituted under 0.5 percent of the profession; in 1960 they were slightly over 1 percent. Not until the late 1940s was an African American appointed to the federal bench or to the full-time faculty of a non-minority law school.46 Although the Supreme Court held racially segregated legal education unconstitutional in 1950, it took the Civil Rights movement of the 1960s to bring major changes. And even then, in 1968, only about 3 percent of law students were black, Latino, or Native American.47 Then, with affirmative action and financial aid initiatives, the numbers increased; by 2019, students of color constituted about one-fifth of law school graduates. Despite such progress, substantial challenges remain.

The same is true for LGBTQ lawyers, whose history in the legal profession paralleled their experience in society generally. Until the late 1960s, criminal prohibitions on homosexual conduct and cultural 26assumptions about sexual “deviance” inhibited public expression of gay and lesbian identity. Individuals whose non-heterosexual practices became known suffered substantial sanctions, including pervasive discrimination in employment. Law was no exception, although the closeted nature of most homosexual practices presented few occasions for bar pronouncements. During the 1950s and 1960s, there were only three reported judicial cases concerning the denial of professional licenses to gays and lesbians, and only one involved an attorney. In 1955, Harris Kimball, a Florida civil rights attorney, was disbarred after being convicted of having sexual relations with another man on an Orlando beach.48

Beginning in the 1970s, the growth of the gay rights movement contributed to substantial changes. Partly in response to such activism, as well as to new research and new interpretations of prior research, in 1973, the American Psychiatric Association removed homosexuality from its list of mental illnesses. Legal challenges to discrimination based on sexual orientation also began to achieve limited success, including in the legal profession. In 1973, on a petition from Harris Kimball, the New York Court of Appeals became the first state to hold that homosexuality was not a ground for exclusion from the bar.49 A series of bar admission cases in Florida subsequently prompted its supreme court to limit moral character scrutiny to inquiries bearing a “rational relationship to fitness for legal practice,” and to determine that private noncommercial sexual acts between consenting adults bore no such relationship.50 And, beginning in the late 1970s, a number of organizations, including the National Lesbian and Gay Lawyers Association, formed to provide support networks and press for changes on issues involving sexual orientation. Still, until relatively recently, a common attitude was that expressed by one legal employer in a Los Angeles bar survey about gay and lesbian attorneys in the mid-1990s: “Don’t have any. Don’t want any.”51

2.The Case for Diversity

The legal profession has a substantial stake in increasing diversity and inclusion and a growing number of bar leaders recognize as much. Indeed, in one recent survey of managing partners and general counsel, participants stressed that diversity was not just the “right thing to do,” but was also critical to organizations’ economic success. As one put it, “A 27diverse team is a more effective team: it has a broader base of experience . . . and the client gets a better product.” Another agreed. “We’re in the human capital business. [Diversity is a way to get] the best people and the best decisionmaking.”52

Research on the business case for diversity generally distinguishes between “cognitive diversity,” which refers to differences in information, knowledge, perspectives, and mental models, and “identity diversity,” which refers to differences in race, gender, age, ethnicity, religion, physical qualities, and sexual orientation.53 Although logically distinct, these two forms of diversity are related because our identities influence what we know, how we perceive events, and how we think.54 Because of that relationship, identity diversity generally leads to better outcomes in non-routine cognitive tasks such as problem solving, predicting and innovating. Researchers find that “even if the person who looks ‘different’ does not bring any new cognitive differences to the table, his or her mere presence has been shown to change the behavior of the group’s members. People work harder in identity-diverse environments than they do in homogenous environments.”55 Insular cultures have a harder time recognizing the need for change. They tend to resist insights of outsiders and don’t learn and adapt.56 Homogeneity triggers expectations of similarity and less welcoming receptions for different opinions. Diverse groups are more accepting of alternative viewpoints, more willing to reexamine facts and assumptions, and more likely to foster persistent voicing of dissenting perspectives.57 People anticipating a homogeneous environment also prepare less thoroughly than those anticipating a diverse interaction.58

Notes and Questions

1.Although the business case for diversity is widely accepted in principle, diversity is often marginalized in practice. Part of the reason may be that findings on its impact are not uniformly favorable. Not all social science research reflects strong, bottom-line benefits from diversity. If poorly managed, diversity can heighten conflict, discomfort, and communication problems, or cause outsiders to suppress divergent views.59 The diversity 28bonus tends not to materialize for tasks where familiarity, trust, and shared understandings are especially critical.60 Nor do all studies find a correlation between diversity and profitability.61 In those that do, it is unclear which way causation runs. It may well be that financial success sometimes enhances diversity rather than the converse. Organizations that are on strong financial footing are better able to invest in diversity initiatives or have sound employment practices that promote both diversity and profitability.62

2.Some believe that, even if diversity has quantifiable advantages in enhancing decisionmaking, the benefits need to be weighed against the adverse effects of “lowering” standards and provoking backlash based on “identity politics” and “special” treatment.”63 In a study by the Minority Corporate Counsel Association, many white men agreed that “diversity should take a back seat to performance and capability.”64 In their view, too much “reverse discrimination” causes resentment, and “stretch hires of minorities who are not qualified sometimes does much to undermine . . . acceptance of diversity and inclusion.”65 As one participant put it, “Taking opportunities . . . from those with merit and giving [them] . . . to people based upon race, gender, or sexual identity is forcing us apart not bringing us together. . . . I can think of few things worse for an ostensibly color blind and meritocratic society.”66 How would you respond to these concerns?

3.By contrast, supporters of diversity initiatives, relying on research summarized below, argue that they are necessary to counteract unconscious biases that limit opportunities for qualified women and minorities. Pretending that we already live in a strictly meritocratic society will not bring us closer to achieving one. Advocates of diversity also point out that it promotes effective leadership by ensuring difference in backgrounds and perspectives, and by enhancing the quality and legitimacy of decisionmaking processes.67 They also note that leaders in today’s multicultural society need “cultural competence”: the ability to understand differences arising from diverse backgrounds and experiences and to adjust their own actions 29accordingly.68 Do you think that it is particularly important for lawyers to display cultural competence? Why or why not?

3.Contemporary Challenges

Although the legal profession has made major efforts to improve diversity and inclusion over the last half century, women and lawyers of color still confront substantial obstacles. Women now constitute close to half of law school graduates, but remain underrepresented in leadership, partner, and trial counsel positions.69 The American Bar Foundation’s longitudinal survey of 5000 lawyers, AJD3, found that about half of women and two-thirds of men in law firms were partners. Of the partners, about two-thirds of men and half of women were equity partners. In the private sector, the gender gap in income was 20 percent.70 In other more recent studies, the gender gap in pay at large firms was 53 percent, which has increased in recent years and which experts attribute primarily to differences in rainmaking and skill in taking credit for rainmaking.71

Perceptions of the problem vary by gender. Sixty percent of women in law firms, compared with 14 percent of men, think that gender will limit their advancement opportunities, and less than half of women, compared with two-thirds of men, think that firms are doing what it takes to improve gender diversity.72 Only 11 percent of male partners, compared with 67 percent of female partners, believe there is a gender pay gap.73

Although African Americans, Latinos, Asian Americans, and multiracial Americans now constitute over a third of the population, they constitute only 15 percent of the profession.74 Persons of color have accounted for 20 to 30 percent of law school graduates over the last decade, and a quarter of law firm associates, but they comprise only 9 percent of law firm partners.75 Women of color, who account for 14 30percent of associates, hold only 3 percent of partnerships.76 About 3 percent of lawyers in the United States identify as LGBTQ, a figure slightly lower than in nation’s total adult population, which is estimated at 4.5 percent.77 In law firms, lawyers that identify as LGBTQ account for about 4 percent of associates and 2 percent of partners.78

The barriers confronting women, LGBTQ lawyers, and lawyers of color have overlapping but also distinctive explanations. All groups encounter unconscious bias and stereotypes, devaluation of competence, special scrutiny that accompanies token status, exclusion from informal networks of advice and assistance, lack of quality assignments, and a paucity of mentors and role models. Explanations for racial and ethnic inequalities also include class barriers. Together with racial bias, these barriers diminish minorities’ aspirations and opportunities to enter law school and constrain their performance and advancement once they graduate.79 In addition, barriers of race and ethnicity intersect with barriers of class and sexual orientation. As the materials in Chapter 16 reflect, racial minorities’ underrepresentation in the law school applicant pool is partly attributable to inadequate financial resources and educational preparation. These factors limit the talent pool of lawyers of color.

The case for diversity and explanations for current inequalities are explored in the excerpt and notes below. Subsequent discussion will focus on strategies that can best address the barriers to diversity that remain.

Deborah L. Rhode, Women in Leadership

Notes and Questions

1.Sexual harassment imposes other gender-related obstacles to success in the legal profession. Studies find that about 25 percent of women, 7 percent of white men, and 11 percent of men of color have reported encountering conduct including “unwanted sexual comments, physical contact, and/or romantic advances.”80 The vast majority of this conduct goes unreported because victims fear retaliation, humiliation, and informal blacklisting, or because they doubt that any meaningful response will be forthcoming.81 Even when legal employers do impose sanctions or terminate the offender, they often do not disclose that fact publicly, which enables serial abusers to avoid exposure.82 Although firms may ask about complaints when hiring laterally, many do not vet the answers or ask for references in order to avoid alerting competitors that one of their attorneys is being recruited.

A case in point involves James Tanenbaum, a senior partner who was forced to leave Morrison & Foerster after an internal finding of multiple instances of sexual harassment. The press release announcing his departure reported only that “Mayer Brown has lured a large capital markets team from Morrison & Foerster.” 83 Lawyers at Mayer Brown knew nothing of the harassment allegations until the firm began receiving calls and a bouquet of flowers with an accompanying note that read: “Thanks for taking him,” and was signed, “The women.” 84

2.Gender disparities are attracting increasing numbers of discrimination lawsuits.85 Most of these suits target pay equity issues, but some focus on other forms of bias, including disparate treatment of mothers and pregnant women.86 In a rare case involving a male plaintiff, a new father sued, claiming that his firm engaged in sex discrimination by treating male caregivers differently than female caregivers, and that the firm retaliated against him for taking the full parental leave guaranteed by federal statute. He alleged that, after he returned from leave, partners withheld work, and that the firm had a “macho culture,” in which associates bragged about how little time they spent on family obligations. The court granted the firm 34summary judgment on the discrimination claim on the ground that the plaintiff “offered no evidence that his termination for low billable hours was actually a pretext for terminating him because he was a male who was also a caregiver.” The trial judge held, however, that there was a triable issue of fact on whether low billable hours was a pretext for retaliation.87

3.What explains racial and ethnic bias? Explanations proceed on several levels. One framework stresses the historical, socioeconomic and political forces that help determine when and which groups become targets of subordination. According to some theorists, social and economic dislocation that generates widespread anxiety often triggers a search for scapegoats. So too, groups that have achieved dominance generally seek to legitimize their position by magnifying group differences.88 Early socialization processes leave individuals with images, assumptions, and expectations that inhibit later efforts to build cross-racial relationships of comfort and equality.89

Other explanations, informed by cognitive psychology, stress the role of social categories in perpetrating racial stereotypes. Individuals’ needs to simplify experience, to maintain group affiliations, and to believe in a “just world” often result in assigning characteristics to subordinate groups that explain their subordination. Most people want to assume that life follows orderly, predictable, and equitable patterns in which everyone gets what they deserve and deserves what they get. To sustain this view, people will often adjust their evaluations of merit to justify existing inequalities. 90 Because individuals are largely unaware of their biases, researchers have developed tests of implicit attitudes, some of which are available online. Such tests find, for example, that both white and black subjects more readily associate positive words and images with whites than blacks; the association is strong for white survey participants, and weak for blacks. This pattern is consistent with other laboratory studies finding that black students show explicit attitudes that are strongly favorable to their own racial group, but implicit associations that are not. Such findings reflect the strength of racial stereotypes even among individuals whose conscious beliefs are to the contrary. 91 This research suggests that one reason racism is so difficult to eradicate is that racial categorization and stereotypes are learned at early ages largely through tacit rather than explicit instruction. These biases are then perpetuated through selective perception of information that confirms them. 92

The problem is compounded by our discomfort with acknowledging and addressing racial and ethnic bias. Because most Americans are taught at early ages that racial biases are unjust, our tendency is to deny that we have them, which “ensures that we won’t examine and change them.” 93 Those who are most convinced that they are objective are the most likely to engage in bias because they fail to monitor their behavior. 94 Whites who equate racism with intentional discrimination also often discount the structural social, economic and political factors that perpetuate inequality—and ignoring those factors leads to backlash against corrective efforts, which seem like “reverse racism.” 95

4. Two recent studies document the persistence of unconscious bias in the legal profession. One involved adult volunteers who evaluated Asian American and white male attorneys’ performance at simulated depositions. All of the volunteers heard the same recording of the deposition, but at the beginning they were shown photographs and names of the fictitious attorneys taking the depositions. Half the volunteers saw a white attorney named William Cole, and half saw an Asian American attorney named Sung Chang. After listening to the deposition, participants rated the deposition performance. Individuals who claimed that they themselves did not hold racial stereotypes about the ideal litigator but thought that most Americans held those stereotypes, gave lower ratings of competence and likeability to the Asian American litigator and were also less willing to hire Sung Chang or recommend him to friends and family. 96 That finding is consistent with other studies documenting stereotypes of Asian American attorneys as less forceful and confident, which decrease their opportunities for mentoring and quality assignments. 97

Another study by a consulting firm demonstrated similar bias. The study’s authors inserted twenty-two errors in a legal memo, ranging from minor spelling and grammatical errors, to errors of fact and analysis. Sixty law firm partners received copies of the memos, which they were told was a “writing analysis study.” Half the partners were told that the author was an African American named Thomas Meyer; the other half were told that that the writer was a white man named Thomas Meyer. The reviewers gave the memo attributed to the white man a rating of 4.1 on a scale of 5, and a rating to the African American of 3.2. While the white man received praise for his potential and analytical skills, the African American was said to be average at best and in need of “lots of work.”98

5.Recent years have also witnessed increased attention to women’s opportunities, not just within the profession generally, but also specifically within the courtroom specifically. Researchers have documented striking and stubborn patterns of women’s underrepresentation as first chairs at trial and in speaking roles in litigation proceedings. For example, one study by the ABA Commission on Women in the Profession, based on a random sample of 600 civil and criminal cases, revealed that:

[W]omen are consistently underrepresented in lead counsel positions and in the role of trial attorney . . . . In civil cases, men are three times more likely than women to appear as lead counsel . . . . That substantial gender gap is a marked departure from what we expected based on the distribution of men and women appearing generally in the federal cases we examined (a roughly 2 to 1 ratio) and the distribution of men and women in the legal profession generally (again, a roughly 2 to 1 ratio).99

A recent report by the New York State Bar Association found much the same. In New York, women were the lead lawyers for private parties barely 20 percent of the time.100 These studies, coupled with her own experience, led U.S. District Court Judge Shira A. Scheindlin to pen a recent op-ed in the New York Times. There, she wrote:

In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role—even though women have made up about half of law school graduates since the early 1990s.101

6. Recent systematic research on barriers for LBTQ lawyers is lacking, but some fragmentary evidence suggests that obstacles persist, particularly outside major metropolitan areas. As the Deputy Program Officer of the National LGBT Bar Association and Foundation notes, even workplaces “with a culture of inclusivity can have hiring partners on staff who are 37homophobic or transphobic.”102 Anecdotal accounts suggest that obstacles may be particularly pronounced for transgender attorneys and LGBTQ lawyers of color, and greatest when they are seeking leadership positions.103

Problem 1

In December 2018, Paul Weiss, one of the nation’s most prominent law firms posted photos of twelve smiling lawyers with the message that it was “proud to announce” its new partner class.104 The smiles didn’t last. All the new partners were white, all but one was male, and the post went viral. What made it a lightning rod for pent up frustration about diversity was not simply the composition of the class: Many Wall Street firms’ records were far worse.105 Rather, it was the firm’s seeming failure to recognize its problem and anticipate the likely response. The firm’s Chair, Brad Karp, promptly issued a statement indicating that the demographic pool for 2018 partners was “idiosyncratic,” and promised that “we certainly can—and will—do better. There is no more important issue to [this firm’s leadership] than diversity.”106 He also predicted that the firm would shortly hire more minority partners laterally, and that diversity efforts would receive greater attention in compensation decisions.

Media followup revealed a mixed picture. Although Paul Weiss’s partnership is more diverse than the vast majority of its large firm peers, that is a fairly low standard. Interviews with current and former lawyers at the firms suggested that many feel that the landscape is far from equal. Some felt that women and lawyers of color were held to more exacting standards, punished more severely for mistakes, and given less professional and client development opportunities.107 Promotion rates were consistent with those claims. White men account for only about 40 percent of incoming associates, but 70 percent of new partners over the past decade.108

a)Not all Americans are troubled by those disparities, although most are reluctant to express their views openly. One exception was the author of a letter to the editor of the New York Times in response to its profile of Paul Weiss. He wrote:

Perhaps I am being naive, but why does diversity have to be the primary yardstick in our society for every decision 38involving the selection of human beings for elevated positions? There are times when ability should outweigh diversity . . . . In this case, Paul Weiss already had an excellent record when it came to diversity, but it is a law firm in the business of winning cases for its clients. Paul, Weiss did not deserve this pubic shaming because in this one instance the two metrics of diversity and ability were not in sync . . . . Clients do not want their attorneys to fight the good fight [on social issues]; they want them to win. Putting diversity ahead of ability can be a self-defeating proposition for the firm—and the client.”109

How would you respond?

b)Many clients saw Paul Weiss’s partnership class as emblematic of broader challenges. After its post went viral, the chief legal officers of more than 170 companies signed an open letter to law firms stating:

We expect the outside law firms we retain to reflect the diversity of the legal community and the companies and the customers we serve. . . . We are disappointed to see that many law firms continue to promote partners classes that in no way reflect the demographic composition of entering associate classes. Partnership classes remain largely male and largely white. . . . We are left to wonder if you and your partners value diversity enough to put into place programs to develop, promote, and retain talented and diverse attorneys. . . . We, as a group, will direct our substantial outside counsel spend to those firms that manifest results with respect to diversity and inclusion, in addition to providing the highest degree of quality representation. We sincerely hope that you and your firm will be among those that demonstrate this commitment.110

c)The American Lawyer, which ran a copy of the Open Letter, also ran a response from a Haitian partner who was skeptical of the effort.

These signatory letters have been more public relations than actual practice. . . . Ask yourselves how many of these same GCs take any real measures to diversify the lawyers they hire on the meaningful matters. Very few do. . . . To be clear, my goal in penning this letter is not to ascribe blame or solicit work from GCs. My goal is to voice the frustration of dozens of racially diverse lawyers like me, who are quite frankly tired of these types of letters and pronouncements leading to no meaningful advancement.”111

If you were one of the general counsel who signed the letter, how would you respond? If you were the chair of another Wall Street firm with a similar new partner class, what steps would you take?112

Problem 2

As many commentators have noted, the case was a kind of “racial Rorschach test” in which observers saw what they expected to see. To lawyers in the firm and sympathizers outside it, including the appellate court, this was a morality play in which no good deed went unpunished. From their perspective, Mungen was treated no worse than white associates, and in some respects, considerably better. The slights and oversights that he alleged at trial were “business as usual mismanagement.” And the extra efforts that the firm made to keep Mungen were evidence of a commitment to equal opportunity. By contrast, critics, including Barrett, saw Mungen’s story as a textbook case of “a reckless indifferent affirmative action.” From their vantage, the firm’s efforts were too little too late. Unsurprisingly, these competing 40perceptions usually divided along racial lines and typified attitudes within the profession generally. In an ABA survey around the time, only 8 percent of black lawyers, but 41 percent of whites, believed that firms had a genuine commitment to diversity.113

Much, of course, depends on what counts as commitment. Katten’s management, like that at many firms, undoubtedly did want lawyers of color to succeed. Even from a purely pragmatic standpoint, it helps in recruitment and business development if a firm includes more than the single black lawyer that Katten’s Washington office had during Mungen’s employment. But while many attorneys want to achieve greater diversity, they do not necessarily want to rethink the structures that get in the way.

a)What would you have advised if you had been the managing partner at Katten? Would you have settled the lawsuit? Instituted other major changes in the firms retention and evaluation processes?

b)Related issues arose in Aaron Charney’s highly publicized lawsuit against Sullivan and Cromwell charging discrimination based on sexual orientation.115 Charney’s complaint cited evidence of what he took to be homophobic comments and retaliation. In defense of the firm’s reputation, one partner suggested that the lawyer who had made the offensive remarks was “equal opportunity rude and nasty.” Eleven openly gay partners issued a public statement rejecting any suggestion that the firm fostered a hostile environment. Charney’s response was: “It’s totally unclear to me how somebody who has never met me could suggest that because we sit in the same building and he’s in an environment that he’s happy in, that that is any way reflective of what’s happening in my environment.”115

How would you have responded if you were on the firm’s management committee? Should firms do more to sanction “equal opportunity offenders?”

4.Reform Strategies

The ABA’s Presidential Initiative Commission on Diversity and the Commission on Women in the Profession, together with other experts in the field, have issued a broad set of recommendations to promote diversity and inclusion within the profession. These efforts focus on increasing accountability and challenging bias. 116 For example, employers should intensify their efforts in hiring, retaining, and promoting lawyers of color. In particular, employers should reassess evaluation procedures and criteria that have a disproportionate racial 41 impact. Recruiters should make greater contact with law schools that have substantial minority enrollments, either through onsite interviews or letters to minority student associations and visits to regional minority placement conferences. Hiring standards should avoid excessive reliance on first-year grades, LSAT scores, and law review experience, which disproportionately exclude students of color and do not measure the full range of skills that are necessary for successful practice. After reviewing research on lawyer effectiveness, Bill Henderson concludes that “academic factors are not very reliable proxies for future lawyering potential.” 117 Other metrics, including some standard personal questionnaires and tailored structured interviews, are better at assessing factors such as achievement motivation and self-discipline, which are more valid predictors of workplace performance. Women and minorities do as well or better than their male or white counterparts on these measures. 118

Employers should also review their evaluation, mentoring, and compensation procedures to assess their impact on underrepresented groups. Early opportunities for quality assignments, feedback, and mentors, and sponsors make a critical difference in professional development, and proactive efforts are often necessary to ensure that these opportunities are equally available.119 Promotion criteria such as collegiality and ability to attract client business need to account for the special obstacles facing women and lawyers of color. Providing adequate opportunities for supervisory experiences, client contact, and transfer of client business should be key priorities. Work/family policies should ensure access to flexible and reduced schedules without career costs. Mentoring, training, and affinity groups focused on the needs of LGBTQ lawyers are also critical, as is support for pro bono work around issues of sexual orientation, and monitoring of initiatives to ensure that they are in fact securing an inclusive culture.120 Compensation systems should be evaluated to prevent systematic gender bias in the allocation of credit for originating business and evaluating performance.

National, state, and local bar organizations have also attempted to expand access to the bar by underrepresented groups. Strategies have included increased recruitment of talented minority high school and college students, greater financial assistance for disadvantaged students, more support for outreach and educational preparation programs by groups like the Council on Legal Educational Opportunities, and additional initiatives that assist minority graduates to pass the bar.

Over the last two decades, a growing number of corporate counsel agreed to “end or limit relationships with firms whose performance consistently indicated a lack of meaningful interest in being diverse.” 121 However, the response to the Paul Weiss matter suggests that more pressure may be forthcoming.

Notes and Questions

3.As you consider the question above, note the dilemma of the only black partner in a prominent San Francisco firm who was asked to help solicit a new client whose general counsel was black. The client’s legal needs were not in an area where she had substantive expertise, although a colleague pointed out that she had worked for the Department of Transportation while a law student and the client’s business was shipping. But business was slow and she felt enormous pressure to respond as she did. “No problem. . . . You know I’m always willing to help with anything that will be good for the firm.” She later regretted the decision. At the meeting when her colleague “made the pitch about the firm’s relevant expertise, none of which I possessed, it was clear that the only reason I was there was to tout the firm’s diversity, which was practically nonexistent. In that moment, I wanted to fling myself through the plate glass window of that well-appointed conference room overlooking the port of Oakland.”122 Would you have felt the same? What would you have done in her position? What factors would have influenced your decision?

4.In an effort to address in-court disparities, U.S. District Judge Jack B. Weinstein has recently issued new rules to govern his courtroom. One states that “junior members of legal teams” are “invited to argue motions they have helped prepare and to question witnesses with whom they have worked.” Judge Weinstein further notes that he is “amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer to participate” and clarifies that the rule was prompted by “studies of underrepresentation of female attorneys and minorities.”123 What is your view of Judge Weinstein’s approach? Are there other strategies that you believe might be more successful? What might explain women’s persistent underrepresentation at trial?

5.Another strategy law firms have embraced is the Mansfield Rule, patterned after the Rooney Rule in professional football. Named after Arabella Mansfield, the first woman admitted to the American bar in 1869, the rule requires that firms consider diverse candidates for at least 30 percent of open leadership and governance roles.124 Do you believe that legal employers should adopt the Mansfield rule? Why or why not?

6.Should legal employers provide the same parental leave to lawyers regardless of gender and regardless of whether they are the primary caretaker? Even where leaves are equally available, male lawyers often feel informal pressure not to use them.125 In the workplace generally, surveys find that about 40 percent of male employees use less than half of the leave available, compared with 13 percent of female employees.126 And half of working fathers, compared with 26 percent of working mothers, feel that they spend too little time with their children.127 How should legal employers respond?

5.Professional Conduct Rules on Harassment or Discrimination

As of December 2019, only two jurisdictions had adopted that rule, although about half had some anti-discriminatory language in their rule or comments.128

Rule 8.4’s revision reflects a quarter century of efforts to obtain an explicit antidiscrimination prohibition. The ABA rejected efforts in 1992 and 1994, and, in 1998, it enacted a compromise provision in the Comments that stated:

[3]A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice 44based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates [the Rule] when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate [the Rule]. A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

However, as an ABA Report accompanying the 2016 Rule change noted, many lawyers viewed this Comment as inadequate because it did not have the same authority as a Rule and applied only to conduct occurring in the course of representing a client that was prejudicial to the administration of justice.129 The new Rule 8.4(g) is broader. It extends protection to three new categories: ethnicity, marital status and gender identity. Furthermore, a new Comment 3 defines “harassment” to include “derogatory or demeaning verbal or physical conduct,” while a new Comment 4 provides:

[4]Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and other while engaged in the practice of law; operating or managing a law firm or law practice, and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule, by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

Although Rule 8.4(g) passed by voice vote in the ABA House of Delegates, and no one spoke in opposition, there were considerable concerns expressed in writing, especially in states that considered adoption. Many of these reservations centered on First Amendment concerns. For example, the Texas Attorney General maintained that Rule 8.4(g) “would severely restrict attorney’s ability to engage in meaningful debate on a range of important social and political issues,” including illegal immigration, same-sex marriage, or bathroom usage, and would suppress “thoughtful and complete exchanges about these complex issues.”130 Professor Eugene Volokh, in a letter to the Arizona Supreme Court, agreed and claimed that Rule 8.4(g) would “turn ordinary employment disputes into disciplinary matters,” and enable disgruntled employees to “use the express or implied threat of a bar complaint as leverage to favorably settle even a meritless lawsuit.”131

Others, meanwhile, insist that Rule 8.4(g) violates the First Amendment on the theory that it imposes content-based restrictions on 45lawyers’ speech. These concerns increased after two recent U.S. Supreme Court decisions. In National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361 (2018), the Court held that government restrictions on professionals’ speech are generally subject to strict scrutiny. To survive such scrutiny, the restrictions must be narrowly tailored to serve compelling state interests. In Matal v. Tam, 137 S. Ct. 1744 (2017), the Court struck down a longstanding federal trademark statute that allowed government officials to deny trademarks for terms that may “disparage or bring into contempt or disrepute” living or dead persons because, in the Court’s view, the statute reflected viewpoint discrimination against offensive speech.

By contrast, other critics argue that Rule 8.4(g) is likely to have little effect. As they note, disciplinary action is rare in states that have long had professional rules that prohibit discrimination.132 Indeed, the ABA Report supporting adoption of 8.4(g) attempted to allay concerns that it would impose an “undue burden” on lawyers by noting that jurisdictions with “antidiscrimination and antiharassment provisions have not seen a surge of complaints based on these provisions.”133 One reason, critics suggest, is that the rules do not include prohibitions against retaliation.134 Another is that most of the barriers to full equality for groups singled out by the Rule have little to do with the kinds of explicit bias that it targets. Rather, the problems involve structural discrimination, unconscious bias and in-group favoritism, and unresponsiveness to work/life conflicts.135

Problem 3

One lawyer tells another, at the water cooler or a bar association meeting on tax reform, “I abhor the idle rich. We should raise capital gains taxes.”. . . . [T]he other lawyer responds “you are just saying that because you’re a short, fat, hillbilly, neo Nazi.”136

a)Has either lawyer violated Rule 8.4(g)? If so, and if you were a member of the governing bar disciplinary body, what sanctions would you impose? If you were a judge reviewing the constitutionality of the Rule as applied to that situation, what would conclude?

b)In response to such hypotheticals, some commentators have argued that underfunded bar disciplinary authorities are extremely 46unlikely to pursue such complaints, particularly given the constitutional issues that would arise. And even if they did, “we as a profession . . . have the capacity to deal with occasional abuses.”137 Others respond that disciplinary authorities would have to call for a response and that, even if they do not impose discipline, “the process will be the punishment.”138 Do you agree? If you were a member of the State Supreme Court, would you vote to adopt Model Rule 8.4(g) as written? If not, is there a modified rule that you would support?

c)Would an aspirational provision, such as in the Rule governing pro bono work, be preferable to Rule 8.4(g)?139 Professor Veronica Root argues that it would, because it would solve the constitutional problem while serving an “expressive function” that could shame offenders.140 What is your view? Which would more effectively change social norms, a broad non-binding provision, or a narrow mandatory prohibition?

d)What other strategies might be most useful to reduce bias and enhance inclusivity in the legal profession? More support for complainants? Online anonymous surveys? Pressure from law students?

Reference: Rule 8.4(g).

E.Lawyer Well-Being

Lawyer well-being is a legal ethics issue because stress, mental health difficulties, and substance abuse are major contributors to disciplinary and performance problems.141 The following excerpt identifies major concerns.

Deborah L. Rhode, “Preparing Leaders: The Evolution of a Field and the Conditions and Stress of Leadership”

58 Santa Clara Law Review 411 (2019).

Notes and Questions

2.The ABA has cosponsored a National Task Force on Lawyer Well-Being that has provided over forty-four specific recommendations for legal employers, legal educators, bar regulators, and other stakeholders.142 The proposals that have gotten the most traction focus on providing education and confidential access to resources for attorneys facing these challenges.143 There is, however, little evidence of a commitment to reducing the problems of overwork and inflexible schedules that compromise well-being.

In a recent survey of law firm leaders, the majority saw stress and workload as the main drivers of mental health and substance abuse difficulties.144 Other research finds that lawyers are the second most sleep-deprived professionals in the U.S., and that fatigue can compromise judgment and decisionmaking.145 Addressing these issues can, of course, be a tough sell to employers whose business model is built on long hours and constant availability. But lawyer impairment threatens these goals; stress and overwork are leading major contributors to physical and psychological 49problems.146 What can and should the profession do to respond to the causes not simply the symptoms of impairment?

That same survey found that, although 94 percent of law firm leaders believed that addiction to alcohol and drugs was stigmatized, 87 percent thought that getting treatment for addiction is not.147 If those beliefs are accurate, what can leaders do to encourage more lawyers to obtain treatment? What can the profession do to help address stress in times of crisis, such as the recent COVID-19 pandemic?148

Chapter 3

The Law of Lawyering

A.The Law Governing Lawyers: An Overview

The term “law of lawyering,” or “law governing lawyers,” refers to all the bodies of formal and informal law that regulate the professional conduct of lawyers. These include: (1) the ethics rules issued under the inherent power of the courts—which supply the most significant and detailed authority; (2) bar formal opinions, the Restatement (Third) of the Law Governing Lawyers, and ABA Standards for various legal specialties; (3) court rules (such as the Federal Rules of Civil Procedure and state-court counterparts), generally-applicable criminal and civil statutes and regulations, and fiduciary law; (4) the United States Constitution; and (5) tort law, in the form of legal malpractice actions. We discuss each below, as well as the parallel bodies of law governing judicial conduct.

1.Ethics Rules and the Inherent Power of the Courts

To practice law, you must belong to at least one state’s bar, which means simply that you have been admitted to practice in that state. Lawyers may belong to the bar of more than one state. The “bar” is nothing more than the set of all lawyers admitted to practice in the state at a given time. It is not the same as a bar association (a professional organization of lawyers).1 To practice in the federal courts of a state, lawyers require separate admission, although generally that merely involves the payment of a fee (and no special bar exam is required).

Ethics rules are promulgated by the courts of each state, as part of their inherent power to administer the courts. “Inherent powers consist of all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective.”2 This “inherent power doctrine” rests on separation of powers principles, and courts have occasionally struck down legislation permitting nonlawyers to practice law, as an invasion by the legislative branch of the courts’ inherent powers.3 52Although the outer bounds of inherent power are unclear, the authority of the courts to issue binding ethics rules and to discipline lawyers for ethics violations is firmly settled. However, courts have acknowledged that the legislative and executive branches can also regulate the legal profession—and they do.

Today’s state ethics codes are titled “Rules of Professional Conduct.” (In the past they were called Canons of Professional Ethics or the Code of Professional Responsibility, and older judicial decisions refer to them under those names.) All states base their Rules of Professional Conduct on a set of Model Rules of Professional Conduct produced by the American Bar Association (ABA). But it is important to understand that the Model Rules are not the law of any state. The ABA is a private organization with no rulemaking authority. Its Model Rules are just what the title suggests: a model that states can use as a blueprint for their own rules.

In fact, all states modify the ABA’s rules to suit their own preferences—no state’s rules are a 100 percent match with the Model Rules. Textbooks, including this one, focus on the Model Rules, and the Multistate Professional Responsibility Examination (MPRE) tests knowledge of the Model Rules. But—we repeat—the Model Rules are not the law. The state codes are.

Formally, a state’s ethics code (its Rules of Professional Conduct) is promulgated by its highest court. In practice, courts delegate the task of rule writing to committees of lawyers, and then adopt what the committee produces. This is one way in which law is a self-regulating profession: The bar writes the ethics rules, and judges (not legislators) adopt them.

The courts also supervise the lawyer discipline system. In some states, nominally independent agencies are tasked with handling disciplinary matters. Each oversight organization has a staff of professional prosecutors, called bar counsel, to investigate grievances against lawyers and, if necessary, prosecute lawyers for ethics violations. Hearings take place before disciplinary panels composed mostly of lawyers. (Many states also include at least one nonlawyer on disciplinary panels.) This is the second way the legal profession regulates itself. If either side appeals a panel decision, it goes to the courts. We discuss the disciplinary process in detail in Section E, below.

2.Bar Opinions, the Restatement of the Law Governing Lawyers, and ABA Standards

State and local bars and bar associations provide ethical guidance to lawyers in several forms. First, every state’s Rules of Professional Conduct include “Comments” on the rules. So do the ABA Model Rules, and state rule-makers often copy the Model Rules’ Comments verbatim or nearly verbatim. These Comments explain each rule’s rationale and 53provide interpretive guidance. Unlike the Rules themselves, the Comments are non-binding. Second, most state bars run hotlines staffed by volunteer lawyers to answer lawyers’ run-of-the-mill questions in a time-sensitive manner. For larger issues, state and local bar associations—and also the ABA—have ethics committees that write interpretive opinions. Written by volunteers, bar opinions naturally vary in quality; the best are impressively reasoned analyses of the rules comparable to good judicial opinions. In roughly a dozen states, these opinions have binding force. In most states, meanwhile, bar opinions have no force of law, but the courts treat them as persuasive. This means, as a practical matter, that lawyers who follow the opinions’ guidance have a powerful defense against ethics charges; in that respect, following the opinions is usually a “safe harbor” for lawyers, even in states where the opinions are not formally binding.4

In the 1990s, the American Law Institute (ALI) created a compendious Restatement (Third) of the Law Governing Lawyers, with detailed black-letter rules and Reporters’ comments. Like all ALI Restatements, it draws on case law and aims to provide a statement of the law in the majority of jurisdictions. It sometimes differs from the ABA Model Rules and it is often much more specific. Like the Model Rules, the Restatement lacks the force of law, but it has powerful persuasive authority, and it often provides the best guidance for lawyers facing ticklish issues that the rules do not clearly resolve.

The ABA also issues model standards for specialty practice areas, for example the ABA Standards on Criminal Justice (for prosecution and defense lawyers) and the ABA Model Standards for Family and Divorce Mediation. You’ll note, for example, that we frequently cite to the ABA’s Standards on Criminal Justice in Chapter 8, as we discuss dilemmas of advocacy in the criminal law paradigm.

3.Court Rules, Statutes, and Regulations

Obviously, lawyers must follow the rules of procedure and evidence in the courts before which they practice. Some of these rules run parallel to ethics provisions. For example, Rule 11 of the Federal Rules of Civil Procedure, discussed in detail in Chapter 7, prohibits frivolous legal filings and arguments, and Model Rule 3.1 does the same.

The legal profession also is bound by generally-applicable federal and state criminal laws, banking and securities laws, antitrust law, consumer protection law, antidiscrimination law, and other law of general applicability. Thus, for example, in Goldfarb v. Virginia, 421 U.S. 773 (1975), the Supreme Court struck down minimum fee schedules set 54by state bars as an antitrust violation. As for criminal law, consider, for example, United States v. Bronston, 658 F.2d 920 (2d Cir. 1981). Bronston was a partner in a New York City law firm. Unbeknownst to the firm, he did legal work for a major financier even though the firm was representing a client bidding against the financier for the same municipal contract on which Bronston was advising him. Bronston’s conduct was a clear-cut conflict of interest—an ethics violation—but he was also convicted under a federal fraud statute and sentenced to four months in prison. Two decades later, a partner in a renowned Wall Street law firm went to prison in Wisconsin for bankruptcy fraud because of an undisclosed conflict of interest.5 Both cases illustrate that ethics violations can also be criminal offenses. The conflict of interest laws governing lawyers working for the federal government are also backed by criminal penalties.6

Quite apart from criminal law, states statutorily regulate the practice of law, and that regulation is quite extensive in the nation’s two largest jurisdictions, California and New York. In some contexts, the federal government regulates lawyer conduct as well. For example, the Sarbanes-Oxley Act requires lawyers to report possible securities violations by client companies, in some cases by going over their supervisors’ heads directly to the company’s board of directors. We discuss these Sarbanes-Oxley requirements extensively in Chapter 11.

Next, some state and federal agencies have adopted their own rules governing the conduct of lawyers practicing before them. Violation of these rules can result in loss of the right to practice before the agency.7 For example, lawyers practicing before federal immigration courts are forbidden from engaging in “contumelious or otherwise obnoxious conduct”—an unusually-worded rule that may well send immigration practitioners scurrying to their dictionaries.8 So too, immigration lawyers are forbidden from “knowingly or with reckless disregard” making a false statement of fact or law—arguably a more stringent rule than Model Rule 3.3(a)(1), which forbids knowingly false statements, but not recklessly false statements.9 The Treasury Department also has promulgated a detailed set of regulations to govern all professionals—nonlawyers as well as lawyers—who practice before the Internal Revenue Service.

In addition to rules, statutes, and regulations, lawyers have fiduciary obligations to their clients. Although the retainer agreement 55between client and lawyer takes the form of a contract, its fiduciary character means, in the words of the classic case Meinhard v. Salmon, that the lawyer “is held to something stricter than the morals of the marketplace.”10 Lawyers must place the clients’ interests above their own. In many contexts, the lawyer is the client’s agent, legally empowered to speak for the client and bind the client. Fiduciary duties such as confidentiality and the avoidance of conflicts of interest are rooted in agency law—although the specific contours of those obligations are spelled out in the applicable Rules of Professional Conduct, which sometimes differ from agency standards.11

4.The Constitution

The Constitution supplies yet another set of relevant authority. In the area of criminal justice, Fifth Amendment standards of due process and the Sixth Amendment rights to effective assistance of counsel govern lawyer conduct. For example, Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose exculpatory evidence to the defense, and Model Rule 3.8(d) makes this an ethics obligation as well. In addition, as discussed in Chapter 13 on Market Regulation, in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court held that the First Amendment protects some forms of lawyer speech, including attorney advertising. And, the following year, in In re Primus, 436 U.S. 412 (1978), the Supreme Court upheld the right of a lawyer for a nonprofit organization to solicit clients, as a form of protected political expression. In another arena, Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), protected the free speech rights of a lawyer who made allegedly prejudicial comments about a case during a press conference.

5.Tort Law (Malpractice)

For obvious reasons, malpractice insurers have a strong incentive to make sure that the lawyers they insure avoid ethics violations as well as other malpractice. Those insurers set conditions for purchasing malpractice policies, which may require a law firm to put a conflicts 56checking system in place, as well as a tickler system to ensure that lawyers do not miss deadlines. Insurers may require their own review of opinion letters by law firms, and they may conduct ethics audits of their policyholders. In this way, malpractice insurance providers become de facto ethics enforcers, and the conditions they attach to malpractice policies are, in effect, a “private” system of ethics regulation.12

B.Professional Regulation and Choice of Law

Problem 1

Problem 2

One other gnarly problem: Each of the three states has a choice of law rule in its state version of Rule 8.5. The Missouri and New Jersey choice of law rules are identical to Model Rule 8.5(b). New York’s choice of law provision has an important substantive difference from the ABA rule. Whereas Model Rule 8.5(b)(2) focuses on the jurisdiction where the conduct took place, New York Rule of Professional Conduct 8.5(b)(2)(ii) 60focuses on the jurisdiction where the lawyer principally practices. It reads:

Reference: Rule 8.5(b).

C.The Model Rules of Professional Conduct: Origins and Effect

1.Early History

During the bar’s early years, its ethical norms arose largely through professional traditions and informal community oversight. Judicial sanctions were relatively rare and usually occurred in response to violations of criminal or civil law.13

In 1906, the ABA issued an influential report recommending a formal ethics code. The immediate impetus for the Committee’s formation was a Harvard University address by then-President Theodore 61Roosevelt that rebuked corporate lawyers for helping powerful clients evade regulatory legislation. The ABA’s president authorized a Committee to consider whether the “ethics of our profession rise to the high standards which its position of influence in the country demands.”14 As the following Report reflects, the Committee’s concerns were rather different than Roosevelt’s.

American Bar Association “Report of the Committee on [the] Code of Professional Ethics”

Notes and Questions

2.The Evolution of Bar Ethical Rules

Following the above 1906 Report, an ABA Committee drafted thirty-two model Canons of Ethics, which the Association approved in 1908 with little controversy or debate. Most states adopted the Canons, in some instances with local modifications. In most other states, the Canons were treated as a source of guidance to practitioners, courts, and disciplinary tribunals. However, substantial problems in enforcement soon arose, in part because of the standards’ brevity, generality, and attempt to combine moral exhortation with disciplinary mandates. The situation worsened as the number of Canons multiplied. By the late 1960s, there were forty-seven Canons, and some 1400 formal and informal opinions interpreting them by the ABA Standing Committee on Ethics and Professional Responsibility. The result was a proliferation of precedents lacking in coherence and consistency. Despite the unwieldy multiplication of texts, many significant ethical problems remained unacknowledged and unaddressed.15

The obvious inadequacies of this structure prompted the adoption of a new model Code of Professional Responsibility in 1969. Again, the proposed standards generated relatively little controversy. After approval by the ABA House of Delegates, the Code was ultimately adopted by every state except California, which enacted a similar body of rules.

In an effort to avoid the confusion that had surrounded the Canons, drafters of the Code divided the text into three parts: Canons, Ethical 64Considerations (ECs), and Disciplinary Rules (DRs). The nine Canons are “statements of axiomatic norms, expressing in general terms the standards of professional conduct.” ECs “are aspirational in character and represent the objectives toward which every member of the profession should strive.” DRs are the mandatory rules. Thus, the DRs are “hard law,” while the Canons and ECs are “soft law.” Understanding this structure is useful for contemporary lawyers because older judicial decisions and bar opinions refer to the Code of Professional Responsibility.

Yet, soon after the Code’s adoption, its content and structure began to provoke criticism. Some complained that the gulf between what the Ethical Considerations exhorted and what the Disciplinary Rules required fostered cynicism and created confusion concerning enforcement. Others identified further problems, including the Code’s failure to distinguish among various functions that lawyers performed (e.g., advocate, counselor) and the inconsistency of its rules on competition with newly emerging Supreme Court decisions. Within a decade of the Code’s adoption, a special ABA Commission was already recommending an alternative set of standards, the Model Rules of Professional Conduct.

Unlike their predecessors, the drafting of these Rules ignited considerable dispute. After heated debates, in 1983, the ABA approved a final version. Today, every state has adopted the Model Rules in large part, although with variations in certain substantive provisions, including the rules governing conflicts of interest and confidentiality.16 The Model Rules are often amended, but states do not always adopt the amendments. In practice, therefore, lawyers need to keep abreast of changes in their states’ Rules of Professional Conduct. Federal courts generally adopt the ethical provisions in force in the jurisdiction in which they sit.

The Regulatory Framework

The format of the Model Rules marks a significant departure from earlier codes. It provides black-letter rules with interpretive comments and little of the moral exhortation characteristic of its predecessors. A note on the Rules’ scope states that “the comments are intended as guides to interpretation, but the text of each rule is authoritative.” The advantage is that this format is familiar to lawyers, and it eliminates potential confusion between hard law and aspiration. However, some commentators have been critical of the Model Rules’ loss of aspirational content, which reduces ethics to the lowest common denominator of required conduct.17

3.Self-Regulation: Justification and Critique

Deborah L. Rhode, In the Interests of Justice

Notes and Questions

1.Deborah Rhode’s excerpt challenges the traditional justifications for the bar’s control over its own ethical codes and enforcement structures. How would bar leaders respond to this critique? How would you?18

2.Does the preceding critique give adequate weight to the importance of an independent profession? Consider the way that the close relationship between American lawyers and judges has helped both maintain the independence of the profession and the rule of law. The importance of such a relationship was well illustrated in the much-publicized “lawyer’s uprising” in Pakistan in 2007. Following Pakistani President Pervez Musharraf’s politically-motivated suspension of the Chief Justice of Pakistan and sixty-plus other judges, thousands of lawyers took to the street. For months, the lawyers led human rights activists, media, and students in protest. In 2009, following Musharraf’s resignation under intense pressure, the judges were finally reinstated. It seemed an “improbable victory,” but one that was deeply inspiring to the global profession.19

3.Other countries, including those with comparable legal traditions, such as Great Britain, New Zealand, and Australia, have moved to replace the profession’s self-regulatory powers with oversight by more independent bodies, including nonlawyers.20 Would such changes be desirable in this country? If so, how could they be achieved?21

4.What changes would you expect in the American bar’s codes of conduct if groups other than lawyers played a central role in the codification process?

5.Many commentators have challenged the desirability of state-based systems of ethical regulation for a profession whose work increasingly crosses state boundaries.22 Would it be more efficient for both lawyers and clients if the American bar was subject to national uniform standards of practice, admission, licensing, and discipline? Defenses of the current system take several forms. One is the standard justification for federalism: It is good to allow states to adjust to local circumstances and take somewhat different approaches to common concerns. Over time, the results from these varied approaches can help guide regulators to adopt the optimal strategy. Another argument rests not on claims that state regulation is desirable, but rather on assumptions that it is politically inevitable. Powerful groups within the profession see too little to gain from a move toward nationalization. How persuasive do you find these claims?

6.A final matter involves international regulation. Increasing globalization in the market for legal services has correspondingly increased the importance of international standards that affect American lawyers. For example, the United Nations in 1990 adopted Basic Principles on the Role of Lawyers as part of an effort to implement international standards in criminal justice. The Council of Bars and Law Societies of the European Union (CCBE), as the representative of bar associations in European Union countries, adopted a Code of Conduct in 1988, which was revised most recently in 2019.23 Conflict of laws issues can arise among national jurisdictions concerning lawyer regulation.

D.The Disciplinary Process

In this country, eighteenth and nineteenth century courts seldom exercised their disciplinary power. Community disapproval and lack of referrals were the primary sanction for professional misconduct and the inadequacy of this approach was a major impetus for the formation of bar associations. The rise of integrated (i.e., compulsory) bar associations in the early twentieth century brought an expansion in regulatory power. Under legislative or judicial mandate, both voluntary and integrated bars gradually acquired authority to investigate misconduct and to impose sanctions, subject to court oversight. The procedures governing lawyer discipline have varied from state to state, although they all must meet constitutional requirements. Because current disciplinary proceedings are “quasi-criminal” in nature, courts have extended basic due process safeguards such as (1) the opportunity to confront evidence and cross-examine witnesses, Willner v. Committee on Character & Fitness, 373 U.S. 96 (1963); (2) the right to present witnesses and argument, In re Ginger, 372 F.2d 620 (6th Cir. 1967); and (3) the right to fair notice, In re Ruffalo, 390 U.S. 544 (1968). Lawyers may not be disciplined for invoking the privilege against self-incrimination, but the privilege does not extend to testimony about non-criminal conduct even if it might lead to professional discipline. Spevack v. Klein, 385 U.S. 511 (1967). A majority of jurisdictions require that disciplinary charges be proven by clear and convincing evidence. A minority demand only a fair preponderance of the evidence.

The effectiveness of disciplinary structures is a matter of continuing concern. Only about one-quarter of surveyed Americans believe that the profession does a good job of disciplining its members.24 The readings that follow describe the capacities and limitations of bar disciplinary structures, as well as proposals for reform. Underlying this discussion are broader questions about self-regulation raised earlier. Are there inherent problems in a regulatory system controlled by the group to be regulated? If so, what follows from that fact?

1.The Duty to Report Misconduct

(c)This rule does not require disclosure of information otherwise protected by Rule 1.6 [confidentiality] or information gained by a lawyer or judge while participating in an approved lawyers assistance program.25

Additionally, Rule 8.4 provides:

It is professional misconduct for a lawyer to:

(a)violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b)commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c)engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d)engage in conduct that is prejudicial to the administration of justice;

(e)state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;

(f)knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

(g)engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. . . .26

———

The following cases explore two different scenarios relating to the duty to report. In the first, In re Himmel, the issue is what triggers the duty to report and what happens to lawyers who fail to meet it. The next two cases, Wieder v. Skala and Bohatch v. Butler & Binion, examine what happens to lawyers who do meet their reporting obligations—but suffer adverse consequences for doing so. In the latter cases, the question is what protections exist against retaliation for a lawyer who reports a colleague’s professional misconduct?

In re Himmel

Supreme Court of Illinois
533 N.E.2d 790 (1988).

[Editors’ Note: The case arose after Tammy Forsberg retained attorney John R. Casey to represent her in a personal injury action. Having settled the claim for $35,000, Casey (who was entitled to a one-third contingency fee) declined to provide Forsberg with her two-thirds share of the recovery. After several unsuccessful efforts to collect, Forsberg hired James Himmel to represent her. Casey subsequently agreed to pay $75,000 in settlement of the claim and Forsberg agreed not to initiate criminal, civil, or disciplinary charges. When Casey failed to honor that agreement, Himmel sued and won a judgment of $100,000. However, he received no fee because, despite the judgment, Forsberg ultimately collected only $15,400 and Himmel’s retainer agreement gave him one-third of the recovery in excess of the amount owed on the original claim.

Prior to retaining Himmel, Forsberg had contacted the Illinois Attorney Registration and Disciplinary Committee (ARDC). When investigation revealed other complaints against Casey, ARDC initiated an action and subsequently disbarred Casey by consent. The ARDC then pursued charges against Himmel for failing to report Casey’s misconduct. On appeal, the Illinois Supreme Court sustained those charges.]

n Justice Stamos delivered the opinion of the Court.

We begin our analysis by examining whether a client’s complaint of attorney misconduct to the Commission can be a defense to an attorney’s failure to report the same misconduct. Respondent offers no authority for such a defense and our research has disclosed none. Common sense would dictate that if a lawyer has a duty under the Code, the actions of a client would not relieve the attorney of his own duty. Accordingly, while the parties dispute whether or not respondent’s client informed the Commission, that question is irrelevant to our inquiry in this case. We have held that the canons of ethics in the Code constitute a safe guide for professional conduct, and attorneys may be disciplined for not observing them. . . . A lawyer, as an officer of the court, is duty-bound to uphold the rules in the Code. . . .

Respondent contends that the information was privileged information received from his client, Forsberg, and therefore he was under no obligation to disclose the matter to the Commission. Respondent argues that his failure to report Casey’s misconduct was motivated by his respect for his client’s wishes, not by his desire for financial gain. To support this assertion, respondent notes that his fee agreement with Forsberg was contingent upon her first receiving all the money Casey originally owed her. Further, respondent states that he has received no fee for this representation of Forsberg.

Our analysis of this issue begins with a reading of the applicable disciplinary rules. Rule 1–103(a) of the Code states:

(a)A lawyer possessing unprivileged knowledge of a violation of Rule 1–102(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

107 Ill.2d R. 1–103(a).

Rule 1–102 of the Code states:

(a)A lawyer shall not

(1)violate a disciplinary rule;

(2)circumvent a disciplinary rule through actions of another;

(3)engage in illegal conduct involving moral turpitude;

(4)engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or

(5)engage in conduct that is prejudicial to the administration of justice.

107 Ill.2d R. 1–102.

. . . We agree with the Administrator’s argument that the communication regarding Casey’s conduct does not [fall under the attorney-client privilege.] The record does not suggest that this 72information was communicated by Forsberg to the respondent in confidence. We have held that information voluntarily disclosed by a client to an attorney, in the presence of third parties who are not agents of the client or attorney, is not privileged information. . . . In this case, Forsberg discussed the matter with respondent at various times while her mother and her fiancé were present. . . . The record [also] shows that respondent, with Forsberg’s consent, discussed Casey’s conversion of her funds with the insurance company involved, the insurance company’s lawyer, and with Casey himself. Thus, under [prior precedent] the information was not privileged.

Though respondent repeatedly asserts that his failure to report was motivated not by financial gain but by the request of his client, we do not deem such an argument relevant in this case. This court has stated that discipline may be appropriate even if no dishonest motive [exists]. . . . In addition, we have held that client approval of an attorney’s action does not immunize an attorney from disciplinary action. . . .

The third issue concerns the appropriate quantum of discipline to be imposed in this case. . . . [Respondent’s] failure to report resulted in interference with the Commission’s investigation of Casey, and thus with the administration of justice. Perhaps some members of the public would have been spared from Casey’s misconduct had respondent reported the information as soon as he knew of Casey’s conversions of client funds. We are particularly disturbed by the fact that respondent chose to draft a settlement agreement with Casey rather than report his misconduct. As the Administrator has stated, by this conduct, both respondent and his client ran afoul of the Criminal Code’s prohibition against compounding a crime, which states in section 32–1:

A person compounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosecution of an offender. . . . Compounding a crime is a petty offense.

Both respondent and his client stood to gain financially by agreeing not to prosecute or report Casey for conversion. According to the settlement agreement, respondent would have received $17,000 or more as his fee. If Casey had satisfied the judgment entered against him for failure to honor the settlement agreement, respondent would have collected approximately $25,588.

We have held that fairness dictates consideration of mitigating factors in disciplinary cases. . . . Therefore, we do consider the fact that Forsberg recovered $10,400 through respondent’s services, that respondent has practiced law for 11 years with no record of complaints, and that he requested no fee for minimum collection of Forsberg’s funds. However, these considerations do not outweigh the serious nature of respondent’s failure to report Casey, the resulting interference with the Commission’s investigation of Casey, and respondent’s ill-advised choice to settle with Casey rather than report his misconduct. . . .

Accordingly, it is ordered that respondent be suspended from the practice of law for one year.

Wieder v. Skala

New York Court of Appeals
80 N.Y.2d 628 (1992).

n Opinion by Hancock, Jr., J:

Plaintiff, a member of the Bar, has sued his former employer, a law firm. He claims he was wrongfully discharged as an associate because of his insistence that the firm comply with the governing disciplinary rules by reporting professional misconduct allegedly committed by another associate. The question presented is whether plaintiff has stated a claim for relief either for breach of contract or for the tort of wrongful discharge in violation of this State’s public policy. The lower courts have dismissed both causes of action on motion as legally insufficient . . . on the strength of New York’s employment-at-will doctrine. For reasons which follow, we modify the order and reinstate plaintiff’s cause of action for breach of contract. . . .

[Wieder, an associate at the defendant law firm, asked the firm to represent him in his purchase of a condominium. The firm assigned another associate, L.L., to represent Wieder. L.L. neglected Wieder’s real estate transaction, and covered up his neglect by lying to him. When Wieder complained to partners at the firm, they admitted that L.L. was “a pathological liar.” Wieder insisted that the firm report L.L. to the bar’s disciplinary authorities. Eventually, and reluctantly, the firm did so, but fired Wieder.]

II.

We discuss first whether, notwithstanding our firmly established employment-at-will doctrine, plaintiff has stated a legal claim for breach of contract in the fourth cause of action. . . . The employment-at-will doctrine is a judicially created common-law rule “that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason.” [The Court notes that in preceding cases of retaliatory discharge of whistleblowers, the at-will employment doctrine prevented the employees from suing.] . . .

Defendants, a firm of lawyers, hired plaintiff to practice law and this objective was the only basis for the employment relationship. Intrinsic to this relationship, of course, was the unstated but essential compact that in conducting the firm’s legal practice both plaintiff and the firm would do so in compliance with the prevailing rules of conduct and ethical standards of the profession. Insisting that as an associate in their employ plaintiff must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship. . . . We conclude, 74therefore, that plaintiff has stated a valid claim for breach of contract based on an implied-in-law obligation in his relationship with defendants.

Bohatch v. Butler & Binion

Supreme Court of Texas
977 S.W.2d 543 (1998).

n Opinion by Enoch, J:

Partnerships exist by the agreement of the partners; partners have no duty to remain partners. The issue in this case is whether we should create an exception to this rule by holding that a partnership has a duty not to expel a partner for reporting suspected overbilling by another partner. . . .

[In 1990, Collette Bohatch became a partner in the Texas law firm of Butler & Binion. She worked in the firm’s three-person Washington, D.C. office, which did virtually all of its legal work for Pennzoil. Bohatch came to believe that John McDonald, the managing partner in the office, was substantially overbilling Pennzoil. She raised the issue with the office’s other partner; then with the firm’s managing partner; and finally, with two other members of the firm’s management committee. The firm’s management committee investigated her charges and concluded that they were unfounded (a conclusion that Bohatch subsequently argued was a coverup). Bohatch was then informed that she should seek other employment. Subsequently, her partnership draw was reduced, and then her partnership was terminated. Bohatch sued the firm for breach of fiduciary obligation. A Texas jury awarded her $307,000 in compensatory damages and $4 million in punitive damages. On appeal, the Texas Court of Appeals held that Butler & Binion had not breached its fiduciary obligation to Bohatch, because the firm did not terminate her partnership for self-gain. It held that the firm had improperly withheld her partnership draw, however, and awarded her $35,000 plus attorneys’ fees. Bohatch appealed.]

. . . The issue presented, one of first impression, is whether the fiduciary relationship between and among partners creates an exception to the at-will nature of partnerships; that is, in this case, whether it gives rise to a duty not to expel a partner who reports suspected overbilling by another partner . . .

The fiduciary duty that partners owe one another does not encompass a duty to remain partners or else answer in tort damages. Nonetheless, Bohatch and several distinguished legal scholars urge this Court to recognize that public policy requires a limited duty to remain partners—i.e., a partnership must retain a whistleblower partner. They argue that such an extension of a partner’s fiduciary duty is necessary because permitting a law firm to retaliate against a partner who in good 75faith reports suspected overbilling would discourage compliance with rules of professional conduct and thereby hurt clients.

While this argument is not without some force, we must reject it. A partnership exists solely because the partners choose to place personal confidence and trust in one another. Just as a partner can be expelled, without a breach of any common law duty, over disagreements about firm policy or to resolve some other “fundamental schism,” a partner can be expelled for accusing another partner, which may have a profound effect on the personal confidence and trust essential to the partner relationship. Once such charges are made, partners may find it impossible to continue to work together to their mutual benefit and the benefit of their clients. . . . The threat of tort liability for expulsion would tend to force partners to remain in untenable circumstance—suspicious of and angry with each other—to their own detriment and that of their clients whose matters are neglected by lawyers distracted with intra-firm frictions. . . .

We emphasize that our refusal to create an exception to the at-will nature of partnerships in no way obviates the ethical duties of lawyers. Such duties sometimes necessitate difficult decisions, as when a lawyer suspects overbilling by a colleague. The fact that the ethical duty to report may create an irreparable schism between partners neither excuses failure to report nor transforms expulsion as a means of resolving that schism into a tort.

We hold that the firm did not owe Bohatch a duty not to expel her for reporting suspected overbilling by another partner. . . . We affirm the court of appeals’ judgment.

n Justice Spector, joined by Chief Justice Phillips, dissenting:

What’s the use you learning to do right when it’s troublesome to do right and ain’t no trouble to do wrong, and the wages is just the same?

—The Adventures of Huckleberry Finn

The issue in this appeal is whether law partners violate a fiduciary duty by retaliating against one partner for questioning the billing practices of another partner. I would hold that partners violate their fiduciary duty to one another by punishing compliance with the Disciplinary Rules of Professional Conduct. Accordingly, I dissent. . . .

[A]ttorneys organizing together to practice law are subject to a higher duty toward their clients and the public interest than those in other occupations. As a natural consequence, this duty affects the special relationship among lawyers who practice law together. . . . I believe that the fiduciary relationship among law partners should incorporate the rules of the profession promulgated by this Court. . . . In light of this Court’s role in setting standards to govern attorneys’ conduct, it is particularly inappropriate for the Court to deny recourse to attorneys wronged for adhering to the Disciplinary Rules. I would hold that in this 76case the law partners violated their fiduciary duty by retaliating against a fellow partner who made a good-faith effort to alert her partners to the possible overbilling of a client. . . . The duty to prevent overbilling and other misconduct exists for the protection of the client. Even if a report turns out to be mistaken or a client ultimately consents to the behavior in question, as in this case, retaliation against a partner who tries in good faith to correct or report perceived misconduct virtually assures that others will not take these appropriate steps in the future. Although I agree with the majority that partners have a right not to continue a partnership with someone against their will, they may still be liable for damages directly resulting from terminating that relationship. . . .

Notes and Questions

1.In re Himmel was the first reported decision disciplining a lawyer solely for his failure to report collegial misconduct. The decision provoked substantial controversy. Some commentators noted with approval that Illinois lawyers’ reports of misconduct increased after the court’s judgment (although subsequent prosecutions for failure to report misconduct have remained rare). This uptick matters because lawyers’ reports are more likely than clients’ reports to result in disciplinary charges and often expose conduct that would not otherwise reach disciplinary agencies because clients benefit or have been compensated.27

Other commentators pointed out that Himmel leaves many troubling issues unresolved. For example, how prompt must the report be and how much knowledge is necessary to trigger attorneys’ obligations? Should it be a “substantial basis,” “a firm opinion that the conduct in question had more likely than not occurred,” or some other standard? If the misconduct may be attributable to a substance abuse problem, would it be enough to contact a lawyer assistance program?28 Should lawyers for malpractice insurance companies also have obligations to inform disciplinary authorities of misconduct that comes to light in investigations related to policy coverage?

2.At the time Himmel was decided, lawyers’ conduct in Illinois was governed by Illinois’s version of the Model Code of Professional Responsibility, the predecessor to the Model Rules. Would James Himmel still have faced discipline, if Model Rule 8.3, rather than Rule 1–103(a), had been operative?

3.Can Wieder be distinguished from Bohatch? How?

4.Who has the better argument: the Bohatch majority or the Wieder court and Bohatch dissent?29

5.An associate in a Connecticut law firm discovered that another lawyer at the firm had changed computer-generated forms for client bills by substituting his name as the lawyer who provided a particular service in place of the lawyers who actually performed the service.30 The associate brought the matter to the attention of the managing partner. The partner subsequently reported that he had discussed the matter with the lawyer involved, had informed him that the conduct was unacceptable and must not be repeated, and had disclosed the conduct to the clients. The partner noted that no clients had been overcharged because the matters were being billed on the basis of fixed fees per case or a uniform hourly rate regardless of who performed the work. Accordingly, the partner believed that conduct did not need to be reported to the bar Grievance Committee.

The associate was unconvinced and asked the Connecticut Committee of Professional Ethics whether, under Rule 8.3 and also Rule 5.2, which permits a subordinate lawyer to defer to a “supervisory lawyer’s reasonable resolution of an arguable question of professional duty,” he could defer to the partner’s judgment about whether his colleague’s misconduct had to be reported.31

The Connecticut Committee of Professional Ethics concluded that the conduct, indeed, had to be reported—and that the associate could not defer to his senior colleague’s flawed analysis. It reasoned that this was not a situation that implicated Rule 5.2 because it was not a situation where the associate was “acting at the direction of a supervisory lawyer, in a matter . . . where a consistent course of action or position was required.” Moreover, in the Committee’s view, even if Rule 5.2 were applicable, the question of whether the lawyer’s misconduct raised a “substantial question” of his honesty and fitness to practice could “reasonably be answered only one way.” Accordingly, the associate was obligated to report the misconduct.

Do you agree? How would you have handled the matter, if you had been in the associate’s shoes? If an associate failed to report under these circumstances, should he be subject to discipline?

6.What constitutes sufficient knowledge of misconduct to trigger reporting and, with associates, to protect the reporting lawyer from retaliation? That was the issue in Joffee v. King & Spalding LLP.32 There, junior associate David Joffee reported to King & Spalding’s general counsel his concern that two senior partners had committed professional misconduct by falsely claiming in court that their client had not disclosed information in violation of a nondisclosure agreement when they, in fact, knew the opposite was true. The senior partners’ actions had resulted in a court order to show cause why they should not be sanctioned, which was settled after King & Spalding were replaced as counsel in the case. Immediately after Joffee reported his concern, he was demoted and his pay was frozen. Joffee then sent an email to the partner in charge of the firm’s associates committee, further criticizing the senior partners’ conduct and stating that the sanctions order was “entirely understandable.” Joffee was fired two months later and filed a claim under Wieder for retaliatory discharge. The firm’s defense was that Joffee could not sue because he lacked “actual knowledge” of the senior partner’s ethical misconduct. The district court rejected this argument, stating that an associate may file a Wieder claim if he “reported, attempted to report, or threatened to report suspected unethical behavior and that he suffered an adverse employment action.” A “good faith belief” in the partners’ unethical conduct was sufficient, and it did not matter that the associate only reported internally, not to the bar. Do you think this is an appropriate extension of Wieder? Does it give the right incentives to associates?

7.What types of violations raise “a substantial question” about a lawyer’s “honesty, trustworthiness or fitness” so as to trigger a reporting requirement under Rule 8.3? Note that state bars have opined that inaccurate advertising, unreasonable fees, and breaches of confidentiality trigger the duty to report,33 while others have found a lawyer’s failure to properly segregate client funds, timely file divorce judgments, and use of impermissible trade name do not.34 Do these cases help you to demarcate the line between actions that trigger the reporting requirement and those that do not? It is clear that the duty to report applies to misconduct even when that misconduct is committed by partners and lawyers in the reporting lawyer’s firm.35

8.Should lawyers be subject to discipline for conduct reflecting bias on the basis of race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status? See Rule 8.4(g). Should judges, or opposing counsel also report such misconduct to bar disciplinary authorities? Are they compelled to do so, under Rule 8.3?

9.Stepping back, the wisdom and value of Rule 8.3 remains disputed. With a few limited exceptions, laws in the United States do not require citizens to 79report even serious crimes to public authorities.36 Nor does tort law impose a duty to act, rescue, or report, except in very limited circumstances.37 Law professor (now federal judge) Gerard Lynch has argued that the same values underpinning society’s unwillingness to impose reporting requirements on citizens generally also apply in lawyer disciplinary contexts. In his view, the “impulse to protect one’s friends and associates from harm, even from deserved punishment, is a moral and socially useful impulse precisely because it reaches beyond individual self-interest; it assimilates another’s well being to that of oneself.”38 Professional relationships founded on trust serve an essential personal and societal function; they satisfy deep-seated interpersonal needs and provide essential buffers between the individual and the state. For lawyers, no less than other individuals, such considerations “counsel against the imposition of a generalized duty to inform.”39 To Lynch, the bar’s power of self-regulation imposes no special reporting responsibilities. A democratic society, he notes, is also self-regulating, but it delegates the police function to specialists. So too, Lynch argues, the profession can appropriately delegate the oversight process to bar disciplinary authorities.40

By contrast, most bar leaders believe that reports of serious collegial misconduct are essential to protect clients and the public from abuses that would otherwise be impossible to detect or deter.41 Rules imposing a duty to disclose misconduct and malpractice can provide critical support for those who would like to come forward but fear collegial hostility or retaliation. In effect, reporting requirements can make lawyers “feel less like a snitch.”42 Even lawyers who ultimately decline to report misconduct can find that a disclosure rule increases their leverage in seeking constructive responses to misconduct from errant attorneys or their firms. Under this line of analysis, reporting duties should be enforceable through professional disciplinary actions and civil liability. Such enforcement, it is claimed, would provide additional pressure for compliance with professional norms, as well as increase the remedies available to injured parties. However, these 80commentators also support greater protection of lawyer whistleblowers from retaliation.43

Do you agree? How would you respond to the issues presented in Problems 3 and 4 below, in light of the preceding arguments?

Problem 3

Problem 4

b)Same facts as in (a) but now suppose that, five years after the attorney dies, you learn that one of the defendants involved in the case is scheduled to be executed, and that his lawyer had discovered an exculpatory blood test that had not been revealed. You provide the defendant’s current lawyer with an affidavit recounting the conversation and then report the misconduct to the Office of Disciplinary Counsel disclosing the conversation. You also testify for the defendant in a motion for a new trial and acknowledge that “I should have reported [the misconduct] sooner, I guess.” Could, or should, the Office of Disciplinary Counsel file disciplinary charges against you for your failure to make a prompt report? If so, what sanction would be appropriate?44

References: Rules 3.8, 8.3, 8.4.

2.The Structure of Professional Discipline—and Its Critics

The Florida Bar v. Neale

Supreme Court of Florida
384 So. 2d 1264 (1980).

William J. Neale, a member of The Florida Bar, petitions this Court for review of a referee’s recommendation in a bar grievance procedure. . . .

This complaint against Neale arose from his representation of a Mrs. Mitchell for a claim of injuries she suffered as a result of being bitten by a dog in 1970. After attempts to negotiate a settlement failed, Neale filed suit on Mitchell’s behalf in 1973. A few days before trial, Neale learned that the dog had a history of biting and that punitive damages might be available. His motion to amend the original complaint in order to allege punitive damages was denied, and Neale, believing that a four-year statute of limitations controlled, took a voluntary nonsuit with his client’s concurrence. At that time, however, the statute of limitations on strict liability arising from dog bites was three years, and the defendants 82successfully raised this defense in the subsequent suit. On appeal, the district court affirmed the trial court’s judgment against Mrs. Mitchell.

The referee found that Neale’s late discovery of the dog’s propensity to bite reflected inadequate preparation under the circumstances because Neale did not properly interrogate his client or make an independent investigation that would have resulted in his learning of the dog’s history of biting.

Neale learned a fact that he deemed important late in the game. He then overlooked or misconstrued the statute of limitations on his statutory remedy. This neglect, however, is not of sufficient magnitude to warrant conviction of an ethical violation under Canon 6.

The power to disbar or suspend a member of the legal profession is not an arbitrary one to be exercised lightly, or with either passion or prejudice. Such power should be exercised only in a clear case for weighty reasons and on clear proof. . . . There is a fine line between simple negligence by an attorney and violation of Canon 6 that should lead to discipline. The rights of clients should be zealously guarded by the bar, but care should be taken to avoid the use of disciplinary action under Canon 6 as a substitute for what is essentially a malpractice action.

Neale had prepared to go to trial on his original complaint. Late in the proceeding he discovered a theory upon which he might have obtained a larger recovery for his client but then made the mistake of dismissing the action. His conduct might well be the basis of a negligence action against him, but, in our minds, it is insufficient to warrant a disciplinary action.

We therefore reject the recommendations of both the referee and the bar and dismiss the charges against the respondent.

It is so ordered.

Deborah L. Rhode and Alice Woolley, “Comparative Perspectives on Lawyer Regulation: An Agenda for Reform in the United States and Canada”

80 Fordham Law Review 2761, 2764–69 (2012).

Notes and Questions

2.Commentators have proposed a variety of reforms to respond to the inadequacies Rhode and Woolley identify above. One cluster of strategies focuses on efforts to make the disciplinary process more proactive and effective. Here, reformers suggest that the jurisdiction of disciplinary agencies should be broadened to include concerns of neglect, negligence, and fees, and resources should be increased to insure adequate investigation and remedial responses. The standard of proof should be the same as for other civil matters—a preponderance of evidence—instead of clear and compelling evidence. In addition, reformers suggest that, rather than relying almost exclusively on felony prosecutions and complaints brought to their attention, regulatory officials should proactively initiate investigations based on malpractice filings, judicial sanctions, and random trust fund audits. In addition, reformers suggest that states should work to make grievances easier to file. Here, states should publicize the complaint process and assist individuals in filing complaints.45 Do you support these reforms?

3.Other countries with legal systems comparable to the United States have moved in a direction of greater responsiveness to consumer concerns and could serve as appropriate models for reform. These countries have established co-regulatory structures in which the bar shares authority with other, more publicly accountable entities. For example, in England and Wales, legal services are governed by an independent Legal Services Board, with a majority of lay members and a lay chair. Less serious complaints involving performance issues are addressed by the Legal Ombudsman, who may require the lawyer to apologize or to pay compensation for financial losses or “inconvenience/distress,” and may also take action “in the interests of the complainant” to put right “any specified error, omission or other deficiency.”46

In Australia, widely publicized scandals also prompted state governments to create more accountable and consumer-oriented regulatory processes. For example, Queensland has an independent Legal Services Commission headed by a nonlawyer.47 Its disciplinary system includes a Client Relations Center, which resolves minor disputes, and a Legal Practice 87Tribunal, composed of a Supreme Court Justice, one nonlawyer, and one practitioner as advisors. Problems of competence and diligence can be subjects for discipline, and all disciplinary actions are published on the Legal Service Commission website. Should similar models be adapted for the United States?48

4.Others take particular aim at the lack of transparency that now pervades nearly all facets of the lawyer disciplinary process.49 As Rhode and Woolley note, only four states—Florida, New Hampshire, Oregon, and West Virginia—treat all or most complaints about lawyers as a matter of public record. In many other states, a complaint becomes a matter of public record only if there is a finding of probable cause, and many complaints are dismissed without such a finding.50 Furthermore:

All but a few jurisdictions impose private discipline, and in many jurisdictions, it is the type of discipline most often imposed. When private discipline is imposed, the affected lawyer and complainant learn about the discipline, but the sanction and the proceedings themselves are maintained as confidential and typically cannot be accessed by the public.51

Proponents of secrecy insist that confidentiality is necessary to safeguard the integrity of investigations, promote administrative efficiency, and to ensure that lawyers are not harmed by unfounded or frivolous complaints.52 Others disagree. As Leslie Levin has explained:

[T]he secrecy surrounding most lawyer discipline in this country makes the fairness and effectiveness of the discipline process virtually impossible to ascertain. It seems clear that the unavailability of discipline information not only hurts consumers of legal services—who may be victimized by lawyers who have been secretly sanctioned in the past—but also affects the legal profession and the public at large.53

Is the current lack of transparency justifiable?

5.There is also the problem that, even if a lawyer has been subject to “public” discipline, crucial information may be “public” only in the limited sense it could theoretically be ferreted out by a savvy researcher scouring a bar website. But the information might not be known by, or practically available to, prospective clients—and even when it is available and actually located, it will typically be vague and incomplete (stating that a lawyer was subject to public discipline, say, but nothing about the lawyer’s underlying conduct or reason or reasons for the lawyer’s punishment). To address this 88problem, some suggest that lawyers ought to be required to provide information concerning their performance records to prospective clients. Other promising alternatives might be centralized databanks and toll-free hotlines that would provide information about judicial sanctions, disciplinary actions, and malpractice judgments akin to the online clearinghouse for physicians, required in about half the states. Would you support any such reforms? If so, how might they be achieved? If not, what alternative strategies would you recommend?

3.Disciplinary Sanctions

(3)the amount of the actual or potential injury caused by the lawyer’s misconduct. . . .54

Mitigating factors include the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, timely efforts to make restitution, personal problems or disability, candor and cooperation in the disciplinary process, remorse, and the imposition of other sanctions.

Some supreme courts rely heavily on those standards in imposing discipline; others have modeled their own standards on the ABA’s framework. The remaining jurisdictions generally have bright-line rules or presumptive sanctions for specific offenses, or alternatively, employ a case-by-case approach to all disciplinary decisions. An unfortunate effect of this regulatory patchwork is to create substantial inconsistencies in responses to similar conduct within and across jurisdictions.55

According to the limited data available, disciplined attorneys are disproportionately likely to practice alone or in small firms and represent individuals, rather than corporations or associations, often in the areas of family law, criminal defense, and plaintiff-side personal injury.56 Reflecting this focus, in California in 2000 through 2001, 23 percent of all lawyers were solo practitioners, but such practitioners were the target of 78 percent of disciplinary actions.57

A number of factors may account for that overrepresentation. Solo and small-firm lawyers have less collegial oversight. They also have less economic cushion, and fewer staff and technological resources to monitor deadlines, respond to client inquiries, and track client funds. There is also the question of whether these lawyers really do violate the rules more often—or, rather, whether there is a bias against solo and small-firm practitioners and/or these lawyers’ ethical lapses are disproportionately likely to be detected and punished.58 On the latter, common grounds for sanctions include mismanagement of trust funds, inadequate communication, and neglect of client matters, such as failure to perform services within prescribed periods. Underfunded disciplinary agencies generally find it cost-effective to target their limited resources to pursue these more cut-and-dry violations. By contrast, the kinds of violations that may be more common in large firms, such as discovery abuse, intentional foot dragging, or complicity in coverups, are harder to prove, and are more likely to benefit, rather than disadvantage, the instant client (rendering it less likely that the client will lodge a disciplinary complaint).59 Consider these factors as you assess the sanction-related issues that follow.

Permanent Disbarment

A controversial issue related to lawyer sanctions involves permanent disbarment. As noted above, permanent disbarment is the most serious penalty. But, in some states, it’s a bit of a misnomer. While five states require all disbarments to be permanent and another eight allow permanent disbarment in some situations, most states allow disbarred attorneys to apply for reinstatement after a prescribed period, generally between three to seven year.60 Nationally, only about 10 percent of those who seek reinstatement or readmission succeed.61 But, between states, the frequency of reinstatement varies. Thus, over one ten-year period, Pennsylvania granted three-quarters of the applications from forty-four lawyers who sought to resume practice, while its neighbor, Delaware, granted none.62 Lawyers who are permanently disbarred in one jurisdiction can be readmitted in another and even those who have been disbarred more than once can apply for reinstatement.

According to David E. Johnson, Director of the Office of the Attorney of Ethics of the Supreme Court of New Jersey:

Disbarment in America today is in truth a myth. It is what I call the great white lie of disciplinary sanctions. Very simply, disbarment in 20th century America does not mean permanent disbarment in the majority of states. As a result, we see repeated instances of thieves, liars, perjurers, rapists and other serious criminal offenders applying for, and sometimes securing, reinstatement to the practice of law. The specter of ever reinstating an attorney who has bribed a judge to fix a case, for example, or has committed other heinous criminal acts, is repulsive to most honest, ethical lawyers. To the public the prospect is inconceivable. Why? Because the public thinks in terms that are straightforward and honest, plain and simple, especially when it comes to core values like the administrat[ion] of justice.63

In Johnson’s view, permanent discipline would provide a powerful deterrent lacking in the current system.64

Professor Ronald Rotunda disagreed. Given the absence of consensus on what misconduct is sufficiently abusive to preclude reinstatement, he 91contended that a system permitting permanent disbarment is likely to produce inconsistent and inequitable results. Rotunda argued:

Because the purpose of discipline is to protect the public, if the court finds that the reason to impose the discipline has changed, and no longer exists, or that the risk to the public of future harm no longer exists, then the court should also reevaluate the need for continued discipline. Wisdom never comes to some people; we should not reject it in others merely because it comes a little late. . . . The possibility of reinstatement is a good policy because it serves the laudable purpose of giving the lawyer an incentive to mend his or her old ways. To take away this possibility is to take away an incentive to reform. . . .

Proponents of permanent disbarment often claim that we should agree with their proposal because it will improve the public image of lawyers. We should resist that temptation: the organized bar should propose legal reforms because they are right, not because they might improve our public image. Lawyers engage in a lot of activities that are bad for their public image, from representing alleged Communists to representing alleged Nazis to using the Fourth Amendment in an effort to exclude probative evidence. If we do things that are proper but bad for the public image, we should respond by trying to educate the public. It is our job to lead, not to follow.65

Mitigating Circumstances

(4)the recovery arrested the misconduct and recurrence of that misconduct is unlikely.66

Concerned with client protection, others have been reluctant to view such difficulties as adequate mitigation. According to HALT (Americans for Legal Reform), for example, it is the job of disciplinary agencies to make sure that the risk to clients is “eliminated or minimized, not excused. The kind of leniency [granted for lawyers] is not accorded elsewhere—one can hardly imagine a bank forgiving a teller’s theft of thousands of dollars and keeping them on the job based on excuses such as alcoholism, mental disability, or willingness to pay it back.”67

Courts, for their part, have been all over the map. According to two commentators: “While some courts have found mental impairment to be profoundly important in determining the appropriate sanction, others have been unwilling to consider mental impairment, even when it appears to be principally responsible for the misconduct.”68

Discipline of Law Firms

Many also question whether disciplinary sanctions should be directed at law firms—or just individual lawyers. Currently, the Model Rules do not include a vehicle to sanction firms, rather than the lawyers employed therein, while only two states (New York and New Jersey) subject law firms to discipline, and even in these states, actual disciplinary actions against firms are rare.69

There is certainly precedent for subjecting law firms to the disciplinary system. Law firms can—and frequently are—held civilly liable in legal malpractice actions initiated by former clients, and firms can also be held responsible for improper pleadings, pursuant to Federal Rule of Civil Procedure 11(c)(1).70 Beyond that, corporate criminal liability has been an accepted part of American law for over a century, and other regulators frequently regulate (and punish) entities themselves and not just their constituent parts. Thus, for example, “[t]he stock exchanges and the Securities and Exchange Commission maintain disciplinary systems for brokerage houses, and not just for the individuals who work in those firms.”71

Law firm liability may also be broadly beneficial. As Professor Ted Schneyer has argued:

Given the evidentiary problems of pinning professional misconduct on one or more members of a lawyering team, the reluctance to scapegoat some lawyers for sins potentially shared by others in their firm, and especially the importance of a law firm’s ethical infrastructure and the diffuse responsibility for creating and maintaining that infrastructure, a disciplinary regime that targets only individual lawyers in an era of large law firms is no longer sufficient. Sanctions against firms are needed as well.72

On the other hand, some argue that disciplining firms may be counterproductive because it enables regulators to take the “easy way out” and avoid identifying which lawyers are responsible for particular misconduct.73 As the general counsel for the Attorney Disciplinary Board of Michigan has put it, “if everybody’s responsible, nobody is responsible.”74 Beyond that, such a rule might stigmatize innocent lawyers—who just happened to be at the wrong firm at the wrong time. And the rule would also force consideration of a slew of difficult subsidiary questions. These include: Must lawyers from a previously-disciplined firm disclose that discipline when seeking admission pro hac vice? Must they disclose to malpractice liability insurance carriers? Will a new lawyer, who joins the firm post-discipline, inherit the taint? And, what standard should govern the firm’s liability: Should firm responsibility come automatically via something akin to respondeat superior, whenever a partner is sanctioned? Or, should a firm only be held responsible if it, itself, breaches a duty of reasonable oversight or supervision?75 Finally and critically, what sanction should be imposed on firms, particularly since organizations cannot be disbarred or suspended?76

Notes and Questions

3.As noted earlier, few complaints result in public discipline, and only a tiny minority end in disbarment.77 What implications, if any, does that have for the sanctioning process?

4.Is it problematic that lawyers guilty of unprofessional misconduct receive significantly different treatment across states?78 Should the bar seek greater consistency? How might it be achieved?

5.A recent study analyzed 500 disciplinary proceedings in thirty-three states. That study found that male and female lawyers were subject to different penalties, even for the same offenses. One of the study’s authors explained: “Where a woman might be suspended, a man is more likely to be put on probation. Looking at the data and just modeling for disbarment, we found women are more than twice as likely to be disbarred as men for the exact same offense.”79 In particular, the researchers found that women were disbarred 35 percent if the time, while men were disbarred 17 percent of the time, even holding the underlying violations constant.80 How, if at all, does this alter your view of permanent disbarment and David E. Johnson’s criticism, outlined above?

Problem 5

Mahlon Perkins, Jr. was a partner at the Wall Street firm of Donovan, Leisure, Newton & Irvine. In order to avoid turning over certain documents during the discovery process in a contentious antitrust case, he falsely stated at a deposition that he had inadvertently destroyed them. He later repeated that statement under oath. He subsequently disclosed the perjury, was convicted of a misdemeanor, and served a one-month prison sentence. Joseph Fortenberry was a Donovan Leisure associate who was present at the deposition. He allegedly reminded Perkins that the documents were not destroyed, but remained silent after Perkins did not correct the misstatement.81

Daniel Cooper

Daniel Cooper was a thirty-eight-year-old law firm partner who pled guilty to charges of overbilling a client $550,000 over two years. He avoided jail by cooperating with authorities and received a criminal 95sentence of six months home confinement and 200 hours of community service. His defense was that he was under pressure to increase hours by a named law firm partner who was a “father figure” to him.82

Laura Beth Lamb

Laura Beth Lamb, a thirty-five-year-old lawyer, faced disciplinary charges for taking the 1985 California bar exam for her husband. At the time of the exam, she was seven months pregnant and suffering complications from chronic diabetes. Her husband, who had previously failed exams in both Texas and California, had bouts of rage and depression during which he threw heavy objects and threatened to kill Lamb and her unborn child if she did not take the test in his place. She agreed, disguised herself as her husband, and scored ninth out of some 7,000 applicants. After an anonymous tip revealed the matter to the state bar, she pleaded guilty to felony impersonation and deception. She received a $2,500 fine, probation, and a sentence of 200 hours of community service. When she was fired from her job at the SEC, she took a position as a legal secretary. She also divorced her husband and received psychological treatment.

In a letter to the court considering bar disciplinary charges, Lamb’s therapist concluded that she “was unlikely to do anything remotely like this again. [Her] prognosis for the future is good provided that she remains in therapy long enough to develop the psychic structures that have not yet matured. . . . This will require a long-term commitment.”83

Fawn Balliro

While on vacation in Tennessee, Fawn Balliro, an assistant DA in Massachusetts, was assaulted by Greg Knox, her then-boyfriend. In the attack, Balliro suffered injuries to her head and face, including a black eye and cuts to her lips. A neighbor, who heard Balliro’s screams, alerted the police, and Knox was arrested on misdemeanor assault charges. Subsequently, however, Knox pressured Balliro to drop the charges because he was on probation for drug offences, and, if he was convicted of this assault charge, he would be incarcerated, and no one would be available to support his two minor daughters. Balliro agreed, although she was unsuccessful in preventing Knox’s prosecution. When called as a witness at Knox’s eventual trial, however, Balliro took the stand and testified falsely that her injuries occurred while falling. The case against Knox was dismissed, and the Tennessee prosecutor informed the Massachusetts DA’s Office of her suspected perjury. The DA’s office put Balliro on leave until she agreed to undergo counseling and report her conduct to disciplinary authorities. She did so, and the bar recommended a public reprimand, partly on the basis of psychiatric testimony indicating that she was highly unlikely to commit such an act again.84

Albert Boudreau

Albert Boudreau, a Louisiana lawyer, was criminally convicted of importing several magazines and a video of child pornography.85 Boudreau purchased the items in the Netherlands, where the magazines were lawful, and the models were of legal age to be photographed nude. However, they were underage by American definitions.

Problem 6

i)A former New York Attorney General who patronized prostitutes even while his office was targeting prostitution.86

References: Rules 1.1, 1.3, 1.5, 3.1.

E.Competence and Malpractice

1.Competence and CLE

Another response to competence concerns has been Continuing Legal Education (CLE) for practicing lawyers. The push for CLE began roughly half-a-century ago in the aftermath of Watergate, largely in response to public criticism of lawyers’ ethics. Nearly all states now require practicing lawyers to participate in CLE programs, generally 98ranging from ten to twelve hours per year.87 In most jurisdictions, some of the coursework must focus on ethics. A minority demand coverage of other topics such as bias in the profession and substance abuse. Failure to stay in compliance can lead to a sizable fine or even a temporary suspension of a lawyer’s law license.

The imposition of CLE requirements has been relatively uncontroversial. After all, most other professions require practitioners to satisfy continuing education requirements. Education is generally thought to be a good thing. (As the Chair of the New York State Bar Committee on Lawyer Competency once put it: “How can you be against education? It’s like being against apple pie.”88) And it is said that the requirement also enhances public confidence in the profession.89 On the latter, at the time CLE requirements were first adopted, an influential report concluded that educational requirements would benefit the “repute of the profession . . . not only because of the improved competence of young lawyers but also because of recognition by the public that the Bar is making every effort to give it the very best of service.”90

Others, however, are less sanguine. Critics point out that CLE consumes millions of dollars and millions of hours of attorney time. Yet, few CLE programs make any significant effort at quality control, and some seem downright silly. (Some courses on sports law, for example, have occurred at sporting events, complete with hot dogs and peanuts.91) Additionally and more broadly, CLEs’ efficacy is unproven. In the words of a District of Columbia Task Force, which spent two years examining the issue and published a nearly 200-page report: “there have been no reliable, scientific demonstrations of the efficacy of continuing legal education.”92

Notes and Questions

3.Since 2003, nearly a dozen states have started to allow attorneys to count a small number of qualifying pro bono hours toward mandatory CLE requirements. As Rima Sirota observes: “This arrangement is justified both as providing a significant learning experience for the attorney, thus fitting within mandatory CLE’s educational mandate, and as encouraging additional pro bono work, thus making a dent in the justice gap not filled through traditional pro bono incentives.”93 Should more states allow pro bono work to substitute for CLE attendance? Or are there drawbacks to such substitutions?

2.Malpractice

Five decades ago, malpractice claims against attorneys were so rare and practitioners were so unconcerned about liability that insurance coverage was generally not available on the domestic market. That situation has dramatically changed. Definitive data is impossible to come by because insurance companies do not disclose payouts, and many settlements remain confidential. However, experts estimate that 3 to 12 percent of attorneys face malpractice exposure in a given year, that annual insurance payouts total approximately $3.5 billion, and that claims, particularly large claims, are on the rise.94

What accounts for the increase? Experts disagree. Some believe that incompetent representation is growing. As the profession becomes more competitive, as profit margins decrease, and as billable-hour expectations escalate, lawyers are under more pressure to handle matters beyond their expertise. Risky financial speculation, corporate scandals, and real estate and debt-related issues have also generated more civil liability. Others believe that the uptick is attributable to rising consumer expectations and greater willingness among lawyers (representing aggrieved clients) to bring such claims.

Despite the escalation, the barriers to initiating successful malpractice actions remain formidable. Some barriers are practical: Many individuals with potential legal malpractice claims will fail to 100recognize that they have been harmed and/or will fail to attribute the harm to an attorney error (typically referred to as the “attribution problem”).95 Then, of the subset of would-be claimants who overcome the attribution problem (in that they recognize that they have been harmed and identify the lawyer as the culprit), many will be unable or unwilling to incur the costs and aggravation associated with actually filing suit. From there, even if a would-be claimant decides that she does want to file suit, actually doing so is difficult. Clients need lawyers (one’s odds of success in pursuing a pro se legal malpractice claim is essentially nil), but, unless liability looks clear and damages are substantial, plaintiffs’ attorneys (who will generally assert the legal malpractice claim pursuant to a contingency fee) can be hard to find.96 Finally, many cases are only worth bringing if the errant lawyer has deep pockets or carries adequate malpractice insurance—and many lawyers have neither. Only Oregon and Idaho require their attorneys to carry malpractice insurance; in other states, some 6 to 60 percent of lawyers are uninsured.97

Legal barriers are no less daunting: Like tort plaintiffs generally, a legal malpractice plaintiff must show duty, breach, causation, and cognizable damages, each by a preponderance of the evidence. These elements are discussed below.

Duty

A plaintiff must first show that the defendant-lawyer owed her a duty of care. When the plaintiff asserting the legal malpractice claim is the lawyer’s former client, and the lawyer’s alleged breach occurred within the scope of representation, this element will be easily satisfied. When nonclients initiate legal malpractice suits, however, the duty question much becomes more difficult.

Traditionally, it was said that lawyers owed no duty to nonclients, even if it was clear that the lawyer’s services were intended to protect or to benefit the third party. See National Savings Bank v. Ward, 100 U.S. 195, 200 (1880) (“Beyond all doubt, the general rule is that the obligation of the attorney is to his client and not to a third party . . . .”). This bright-line privity requirement was often justified on the theory that extensive liability could would place an undue burden on the profession and would dissuade lawyers from offering clients vigorous representation. Some also said that it would be too difficult to “distinguish between harm resulting from inappropriate lawyer conduct on the one hand and, on the 101other hand, detriment to a nonclient resulting from a lawyer’s fulfilling the proper function of helping a client through lawful means.”98

Over the past several decades, however, many courts have started to relax this privity requirement, recognizing that nonclients are often affected by lawyers’ conduct and also foreseeably and reasonably rely on lawyers’ assurances.99 Reflecting this expansion, attorneys may now be liable to an estate’s intended beneficiary if errors in the decedent’s will prevent the beneficiary from receiving the bequest. Or, similarly, if the seller’s lawyer at a real-estate closing offers to record the deed for the buyer and subsequently fails to do so, the lawyer may be liable to the buyer, even if no lawyer-client relationship was ever established.100 Such holdings rely on agency principles, third-party beneficiary theories, or a balancing test that considers the predictability and certainty of harm, the defendant’s moral culpability, and the extent of the third-party’s justifiable reliance on the defendant’s conduct.101

Breach

After showing that the attorney owed her a duty of care, a malpractice plaintiff must next show that the attorney breached that duty of care. Each state formulates its particular standard of care a bit differently.102 Generally, however, breach can be shown if the lawyer failed to exercise or display the competence, skill, prudence, and diligence commonly exercised by lawyers in similar circumstances in the given locale.103 In applying this standard, the factfinder will compare the defendant-lawyer’s conduct to the conduct of other lawyers undertaking similar matters in the same jurisdiction, to see if the defendant-lawyer’s conduct conformed to what was customary or, alternatively, fell short.104

While that is easy enough to say, actually showing that the lawyer’s conduct deviated from the norm is often difficult. Since there is no neat book that compiles “legal custom” or catalogs what reasonably diligent and prudent lawyers in jurisdiction X do or don’t do when facing problem 102Y under circumstance Z, even establishing the standard of care generally requires competent expert testimony.105 If a plaintiff cannot find a qualified expert to testify to the relevant standard of care and opine that the lawyer departed from the standard, a legal malpractice case is likely to be dismissed, even prior to trial.

Cause and Injury

Finally, even if the plaintiff can show his or her attorney owed her a duty and breached that duty, causation (showing that the client would not be injured but-for the lawyer’s breach) remains a formidable obstacle. If the former attorney erred in a tort case, this standard requires a plaintiff to prove a case within a case, showing that the underlying claim had legal merit which the attorney’s error erased or diminished.106 That means, in a medical malpractice case, for example, where the defendant-lawyer failed to file suit within the applicable statute of limitations, the plaintiff-client must go through the time, expense, and trouble of showing that, if the medical malpractice claim had been timely filed and vigorously litigated, the plaintiff would have more-likely-than-not prevailed under the governing law. If the underlying claim had only dubious merit, causation on the legal malpractice claim will not be established. Likewise, where malpractice occurred in a criminal case, plaintiffs in many jurisdictions must show actual innocence in order to prevail.107

Notes and Questions

1.When it comes to showing that the attorney-defendant breached, the burden on plaintiffs would be substantially lighter if a rule violation constituted negligence per se, as unexcused rule and statutory violations typically constitute negligence per se in other contexts. See, e.g., Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920). Yet, the ABA has resisted such a shortcut. The Preamble to the Rules of Professional Conduct states:

4)Declare that ethical standards are inadmissible.108

Which approach is most sensible?

2.Many question the relationship between client-initiated legal malpractice proceedings and state-initiated attorney disciplinary actions—and whether, via principles of collateral estoppel, a court finding in the former can be used to simplify the latter, and vice versa. Generally, the answer is no. Professors Herbert Kritzer and Neil Vidmar explain:

A finding by a court in a [legal malpractice case] that a lawyer acted in a way that would constitute an ethics violation does not generally preclude a lawyer from contesting that before an ethics panel. The reason is that, in most states, an ethics panel requires “clear and convincing evidence” to find a violation, whereas, in most civil proceedings, the standard of proof is the less stringent “preponderance of the evidence.” . . .

For different reasons, collateral estoppel based on findings of a disciplinary panel does not apply in a subsequent [legal malpractice] civil proceeding. The primary reason for this is that the defendant in a [legal malpractice] lawsuit enjoys the right to a jury trial [and disciplinary actions are not tried before juries]. A second issue is that, in some states, for collateral estoppel to apply, both parties (including those in privity with parties) in the previous forum must be bound by that forum’s decision; generally, the plaintiff in a [legal malpractice] matter is in no sense bound by the findings of the previous disciplinary proceeding even if the plaintiff initiated the complaint that led to the discipline.109

3.What about insurance? As noted above, a significant problem with the status quo is a lack of adequate liability insurance coverage, which makes many lawyers effectively judgment proof—and also means many aggrieved former clients cannot find representation to assert malpractice claims, even when those claims are meritorious. Beyond assuring adequate compensation, insurance has other benefits too. Namely, when insurance 104companies are involved, they can monitor policyholders for risky practices and require loss prevention strategies.110 Critical preventive techniques include systems for identifying conflicts of interest and ticklers to remind lawyers of important deadlines.

Despite the benefits that would flow from making insurance mandatory, only Oregon and Idaho require all attorneys to carry malpractice insurance—and Idaho’s requirement is fairly new. In 2018, the Nevada State Bar petitioned the Nevada Supreme Court to adopt a liability insurance requirement. But with little discussion, the petition was denied.111

Some oppose making insurance mandatory. Opposition is particularly fierce among members of the bar who do not practice full-time or who could not readily afford liability premiums. Critics also worry that mandatory coverage would force lawyers to raise their rates, chill pro bono activity, and encourage frivolous claims.112

Supporters of mandatory insurance respond that, regardless of whether or not lawyers are insured, frivolous claims are exceptionally rare; no increase in claims occurred in Oregon, when it made liability insurance mandatory, and insurance premiums in Oregon are below those of comparable jurisdictions. Supporters also observe that, in many other countries, including Canada, Australia, and most of Europe, lawyers must maintain legal malpractice insurance as a condition of law practice.113 And, in many states, physicians and dentists must maintain professional insurance in order to maintain their professional licenses.114

Should legal malpractice insurance be mandatory? Why or why not?

4.Another option—which some view as a compromise approach—is to require attorneys who do not have malpractice insurance to disclose that fact. Supporting this approach, in 2004, the ABA adopted a Model Court Rule which compels lawyers to “disclose on their annual registration statements whether they maintain professional liability insurance.” About half the states require some form of disclosure regarding malpractice insurance, but only seven require disclosure directly to clients.115 South Dakota has the most robust direct disclosure rule, which requires lawyers to disclose directly to clients if they do not maintain at least $100,000 of insurance and to convey this information in every written communication with clients and in any advertising materials.116 Perhaps as a consequence, in South Dakota, only 2 105percent of practitioners are uninsured.117 Opponents of mandatory disclosure argue that the requirement constitutes a form of improper compelled speech and is misleading because the fact of coverage is not indicative of competence or even necessarily of the chances for recovery, given the exclusions written into most policies.118

Should states require uninsured lawyers to disclose their lack of insurance to prospective clients? Why or why not?

5.Even where the erring lawyer is uninsured or otherwise judgment proof, some compensation is generally available for fraud or dishonesty through bar-administered client security funds (which are subsidized by mandatory lawyer contributions). However, such funds pay only about 10 percent of the claims made.119 Is that defensible?

6.Under what circumstances should third parties be entitled to sue lawyers for malpractice? Should opposing parties have a claim against attorneys who violate ethical rules in contexts like discovery abuse?

7.Another serious impediment aggrieved clients face is initiating malpractice claims within the prescribed limitations period. Statutes of limitations vary in length, from as little as one year (e.g., Kentucky and Louisiana) to up to six years (e.g., Hawaii and Wisconsin). States also differ, when it comes to when the clock starts running. In some states, the clock starts running when the error or omission occurred—regardless of when the client became aware, or reasonably could have become aware, of the lawyer’s error or omission. In other states, the statute of limitations does not start running until the client became aware, or should have become aware, of the lawyer’s breach.120 Which approach is more justifiable?

8.Model Rule 1.8(h) imposes two limits on lawyers’ conduct vis-à-vis malpractice (or potential malpractice) claims. In particular, it provides that a lawyer “shall not”:

(1)make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2)settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

A comment to Model Rule 1.8(h) provides, however: “This paragraph does not . . . prohibit a lawyer from entering into an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable 106and the client is fully informed of the scope and effect of the agreement.” Should lawyers be able to force clients into compelled arbitration?

9.As noted above, professional negligence can be very difficult to prove, in part because showing whether the lawyer’s performance deviated from the “custom” of the profession is difficult—and also because showing causation is tricky. In response, some commentators have argued that a preferable approach is to determine what constitutes reasonable performance under the totality of the circumstances, including clients’ legitimate expectations. That is the standard prevailing in other nations’ disciplinary as well as malpractice systems. Commentators have also argued for a less rigorous standard than but-for causation. One promising approach would be the test applicable in England and France, and used in certain medical malpractice cases in roughly twenty American jurisdictions. Under that “loss of chance” test, plaintiffs who demonstrate that the defendant’s substandard performance deprived them of a substantial possibility of recovery would be entitled to damages adjusted to reflect the likelihood of success.121 Would you favor one of these reforms?

F.Judicial Ethics

The role of judges as the final arbiters of justice places them in one of the most critical positions in the American legal system. Therefore, how they conduct themselves in resolving disputes—particularly taking care to avoid bias and conflicts of interest—has significant implications for the legitimacy of the rule of law. In almost all jurisdictions, judges are fully qualified lawyers, licensed in the jurisdictions in which they sit, although some federal administrative judges, and others working in state and local tribunals (especially in rural areas) are not.122 Overall, judges are bound by a special body of ethics law that is designed to promote impartial adjudication.

Knowledge of judicial ethics is important because some lawyers will become judges (3 percent of lawyers were judges in the last statistical count123), and also because many lawyers end up practicing in front of judges in court and must therefore be attentive to any deviation from judicial ethics that might undermine the validity of a proceeding. From the law student’s perspective, judicial ethics also has immediate salience since the Multistate Professional Responsibility Examination, or MPRE, frequently tests judicial ethics under the ABA Model Code of Judicial Conduct. Indeed, the National Conference of Bar Examiners, which administers the MPRE, indicates that 2 to 8 percent of its test will typically cover judicial conduct, with an emphasis on maintaining impartiality and avoiding conflicts of interest. Although there is some 107focus on basic judicial competence (e.g., conducting the requisite amount of research before issuing an opinion), a review of MPRE exams reveals that most questions probe situations in which judges have actual conflicts, such as having a financial interest in a pending case, or engage in actions that raise the appearance of impropriety—for example, holding ex parte communications with litigants or engaging in outside activities that raise the specter of bias.

This section provides an overview of judicial ethics issues in relation to distinct sources of legal regulation.124 As with lawyers, the regulation of judges comes in different forms, which center around state and federal codes of conduct, in addition to judge-specific statutes and general ethical norms.125

1.Judicial Codes of Conduct

In the U.S. federalist system, there are two levels of judges and hence two type of judicial codes. In state systems, where most judges work, ethical conduct is policed through state codes of judicial conduct adopted by state supreme courts. Most of these codes are based on the ABA Model Code of Judicial Conduct, originally adopted in 1924 after the first Commissioner of Major League Baseball, hired to clean up the sport in the wake of the infamous Chicago White Sox cheating scandal, was revealed to be cheating himself: taking a salary for his Commissioner work while still hearing cases as a full-time judge.126 Soon thereafter, the Judicial Conference of the United States, composed to monitor the federal bench, passed a resolution stating that federal judges would look to the ABA Model Code as the source of ethical guidance for federal judges.127 After the ABA’s 1972 revision of the Model Code, the Judicial Conference followed suit by adopting a full-blown Code of Conduct for United States Judges in 1973.

In the main, the federal judicial Code of Conduct generally tracks the ABA Model Code; the following analysis will therefore concentrate on the ABA version, which was most recently revised in 2007 and has been adopted in some form by thirty-five states (with another ten actively considering its adoption). There are, however, some notable differences between the ABA Model Code and the Judicial Conference’s federal Code, which merit attention. For one, the federal Code—while embracing general principles of upholding the independence of the bench, avoiding the appearance of impropriety, and acting impartially—has not adopted extensive prohibitions on bias, prejudice, and harassment, which were 108incorporated in the 2007 version of the ABA Model Code (although the federal Code does prohibit affiliation with discriminatory organizations).

Additionally, unlike the ABA Code, which (when adopted by states) applies to all judges in a jurisdiction (including those sitting on the apex court), the federal Code entirely exempts Supreme Court Justices from its purview. The rationale provided for this exemption is that, unlike judges in lower federal courts, which were established by Congress, U.S. Supreme Court Justices derive their authority directly from the Constitution, which provides that they may serve as long as they demonstrate “good behavior” and may only be removed by impeachment.

This ethical exemption has led to significant controversies, most recently after the nomination hearings of Brett Kavanaugh, whose attack on a woman accusing him of sexual assault as an “orchestrated political hit, fueled with apparent pent-up anger about President Trump,” caused court watchers to file an ethics complaint against him on the grounds that his testimony demonstrated bias and lack of integrity. The complaint was dismissed by the Judicial Conference’s Committee on Judicial Conduct on the ground that, although Kavanaugh was a sitting circuit judge at the time of the hearings, the ethics rule did “not apply to a judge who has resigned from a covered judicial office and thereafter been confirmed as a Supreme Court Justice.”128 In controversial earlier cases, Supreme Court justices have declined to recuse themselves despite prior connections with parties and positions.129

General Principles

The Model Code of Judicial Conduct is organized around four basic canons that address the major areas of ethical concern.

Canon 1 of the Code requires that “a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” The rules delineated under this canon are focused on protecting the reputation of the bench as a pillar of fairness from misconduct by judges, while also stressing that public confidence may be “eroded by improper conduct that creates the appearance of impropriety,” noting that a judge’s duty to promote public confidence “applies to both the professional and personal conduct of a judge.”130 While actual improprieties covered by Canon 1 include violations of law and ethics, the “test for appearance of impropriety is whether the conduct would create in reasonable minds a 109perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”131

Canon 2 is organized around the mandate that a “judge shall perform the duties of judicial office impartially, competently, and diligently.” This mandate requires that judges give “precedence” to their judicial duties (treating judging as the full-time job it is),132 while performing the functions of the judicial role with competence and diligence (engaging in sufficient preparation and devoting the necessary time to perform crucial functions),133 and taking care to protect the core value of a litigant’s right to be heard.134

A critical focus of Canon 2 is on action that judges must take or avoid in order to ensure impartial adjudication. Rule 2.2, often considered one of the most important, states that “[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” This rule is frequently cited in relation to concerns about a judge’s ideological bias and requires that, despite a judge’s “personal philosophy,” she “must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”135 As will be discussed below, Rule 2.2, in combination with Rule 2.4’s prohibition on permitting “family, social, political, financial, or other interests or relationships” from influencing judicial conduct, form the cornerstones of judicial conflicts of interest law. Canon 2 also broadly proscribes ex parte communications,136 as well as extrajudicial statements likely to impact the outcome of a case.137 Recognizing the pivotal role judges play in observing the ethical behavior of others, Canon 2 further requires a judge to report other judges or lawyers whose conduct violates the relevant codes and “raises a substantial question” about the judges or lawyers’ honesty, trustworthiness, or fitness.”138

Canon 3 requires that a “judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.” Canon 3 requires a judge to minimize outside activities that interfere with job duties or undermine independence,139 and to avoid conflicting roles like serving on other governmental bodies outside of the judicial role.140 The central focus of this canon is on financial conflicts of interest. In this regard, Canon 3 110prohibits a judge from serving as a paid arbitrator or mediator,141 practicing law,142 or serving as a manager or employee in an outside business, although a judge “may hold and manage investments of the judge and members of the judge’s family,” unless they “interfere with the proper performance of judicial duties.”143 Rule 3.13 prohibits judges from accepting “any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”144 Rule 3.13 does, however, permit judges to take small honoraria with little intrinsic value, like plaques and fellowships available to nonjudges, as well as other benefits (like special pricing or random prizes) available to the public at large.145

Canon 4 of the Code requires that a “judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary.” This canon applies to judicial participation in the partisan political campaigns of others, as well as setting rules of conduct for judges running for their own elected judicial positions. In this regard, the canon prohibits judges from endorsing political candidates, speaking on behalf of or holding office in political organizations, personally soliciting campaign contributions, or otherwise overtly engaging in partisan political activities.146 Although a candidate for an elected judicial position may establish a campaign committee to run for that position, a judicial candidate is required to ensure that the committee only accept reasonable contributions within appropriate time frames and to comply with laws requiring the disclosure of donor identity.147 In running for an elected position, a judicial candidate is required to ensure that other persons involved in campaigning do not violate ethics rules and that the candidate act “at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary.”148

Disqualification and Discipline

The primary mechanism of enforcing judicial ethics is recusal. Under Rule 2.11(A) of the ABA Model Code, a “judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” The rule lists several circumstances requiring disqualification, including when a judge has a personal bias; has personal knowledge of facts in dispute; knows that the judge or a close family member (including a domestic partner) is a party, lawyer, material 111witness, or has an economic interest in the proceeding; knows that a party or lawyer in a proceeding has given large contributions to the judge’s campaign; or has made a public statement that “commits or appears to commit” the judge to a particular result.149 The bases for judicial disqualification may be waived by the parties after full disclosure by a judge.

In most cases, recusal is triggered when judges are asked by parties to voluntarily recuse. However, as we have seen in other contexts—like the decision by Attorney General William Barr to not recuse himself in the investigation by Special Counsel Robert Mueller into Russian interference in the 2016 presidential election despite having taken a position on its merits prior to joining the Justice Department—what happens when a judge determines that his or her recusal is not warranted is a murky area. Typically, when there is a basis for judicial disqualification, a litigant must file a motion for judicial recusal with very judge overseeing case, which—if rejected—could place the litigant in an awkward situation going forward in the case. In practice, that means that lawyers are often reluctant to file recusal motions and even when they do, if judges refuse, there is little lawyers can do to force them out of a case.

Federal law imposes recusal rules on all judges, including Supreme Court Justices—although compliance is again largely left to the discretion of the judges themselves. Under 28 U.S.C. § 455(a), recusal is mandatory for any “justice, judge, or magistrate judge of the United States . . . in any proceeding in which his impartiality might reasonably be questioned.” In addition, under § 455(b), federal judges must recuse when they have designated conflicts, including: demonstrating personal bias or prejudice; having knowledge of disputed facts; having served as a lawyer on the matter in private or government practice, or having served as a material witness; possessing a financial interest either directly or through a close family member; or having a close family member acting as a party, lawyer, or witness in the proceeding.150 The recusal statute permits the parties to waive judicial conflicts under the general “impartiality” provision of subsection (a) but prohibits party waiver of any enumerated conflict under subsection (b).151

At the state level, most courts have created committees to review charges of serious ethics violations and impose discipline up to and including removal. However, there are no analogous ethics enforcement bodies for federal judges, who may only be removed through impeachment.

2.Other Forms of Judicial Control

We have already mentioned the federal recusal law as a source of judicial regulation outside the scope of the ethics codes. Federal statutes contain other legal requirements bearing on judges appointed to the federal and, in some instances, the state bench. Most of these regulations track what is contained in the ABA Model Code although they impose different penalties. For instance, 28 U.S.C. § 454 makes it a “high misdemeanor” for a federal judge (including a Supreme Court Justice) to engage in the practice of law. Section 458 prohibits nepotism by proscribing the appointment of anyone related within the degree of first cousin to a sitting judge on the same court, state or federal (other than the Supreme Court).

In addition to federal statutes regulating judicial conduct, some courts have held that judicial conflicts of interest violate a litigant’s due process rights. The most prominent case in this regard was Aetna Life Insurance Co. v. Lavoie , 475 U.S. 813 (1986) , in which the Supreme Court invalidated a state appellate court judgment on due process grounds when the judge who wrote the 5–4 opinion had a financial interest in the case. Specifically, the judge, whose opinion affirmed a financial judgment against the insurer Aetna for failure to pay on legitimate claims, was simultaneously a plaintiff in a similar action against another insurer—which agreed to settle on favorable terms after the Aetna decision set precedent against insurers. Some lower courts addressing the same issue have held that due process violations only occur if the judge who should have been disqualified cast the decisive vote. 152

More drastic remedies than recusal are possible for a judge’s ethics violations. During a capital case before the Guantánamo military commissions, the judge, Air Force Colonel Vance Spath, was secretly negotiating with the DOJ for a job as an immigration judge (IJ) after he retired from the military. In his application, Judge Spath emphasized his role in the high-profile terrorism case, and he submitted one of his 113 judicial orders as his writing sample. 153 Explaining why this conduct created a conflict of interest, the D.C. Circuit Court of Appeals noted that “the Attorney General himself is directly involved in selecting and supervising immigration judges,” and the Attorney General simultaneously “was a participant in Al-Nashiri’s case from start to finish.” 154 Both judicial and lawyer ethics prohibit judges from negotiating for a job with a party before their court, because it creates the appearance of partiality. 155 In this case, the remedy was drastic: The court vacated all 460 of Judge Spath’s orders issued during the two-plus years he had been negotiating for the IJ position. 156 Astonishingly, the military judge who replaced Judge Spath was also negotiating for an post-retirement immigration judgeship. Upon revelation of that fact, she was swiftly removed from the case. 157

3.Former Judges

Back in the realm of lawyer ethics, Model Rule of Professional Conduct 1.12 spells out special disqualification rules for former judges. Section (a) prohibits a lawyer from representing a client in a matter “in which the lawyer participated personally and substantially as a judge or other adjudicative officer . . . unless all parties to the proceeding give informed consent, confirmed in writing.” Disqualification of a former judge under (a) may not disqualify the former judge’s entire law firm if the firm institutes a proper screen and provides written notice to the parties and tribunal.158 As noted above, Rule 1.12(b) prevents a judge from negotiating for employment with parties or lawyers currently appearing in front of that judge.

Notes and Questions

Can and should Rule 2.3 target implicit bias—subconscious stereotyping—that may manifest itself in unfair outcomes for specific groups? There is a large body of empirical evidence supporting claims of widespread judicial bias that has significant negative consequences for minority groups. For example, one study found that judges set bail amounts for African-American defendants 25 percent higher than for white defendants, controlling for distinguishing factors.159 A national study of judicial attitudes found that “judges harbored strong to moderate negative implicit stereotypes against Asian-Americans and Jews, while holding favorable implicit stereotypes towards Whites and Christians.”160 How should judicial ethics address these systemic disparities?

2.While implicit bias may be hard to detect on an individual basis, other forms of conduct sanctioning discrimination are out in the open, raising concerns about a judge’s impartiality. This arises with respect to judges holding memberships in private organizations, like country clubs, that discriminate against women and people of color by excluding them from membership. In 2011, the chief bankruptcy judge from the Middle District of Tennessee was reprimanded for holding membership in Nashville’s white-male-only Belle Meade Country Club.161 The ABA Model Code of Judicial Conduct Rule 3.6 explicitly prohibits a judge’s “membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity or sexual orientation,” and also proscribes the knowing use of “the benefits or facilities” of such an organization, except that attendance at a discriminatory organization’s event is permitted if it is “an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.”162

3.In order to uphold the requirement that a judge decide cases based only on facts in evidence, the Model Code of Judicial Conduct Rule 2.9(A) states that a “judge shall not initiate, permit, or consider ex parte communications . . . .” There are, however, a number of exceptions, all designed to permit judges to effectuate their duty of diligence. One of these exceptions allows a judge to “obtain the written advice of a disinterested 115expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties . . . and affords the parties a reasonable opportunity to object and respond . . . .”163 Another exception permits a judge to confer separately with parties to facilitate settlement.164 Beyond this narrow band of communications, a judge is generally barred from independent fact investigation, which would include Internet searches to illuminate facts at issue.165

4.Do you think the following situations raise concerns of actual or apparent ethical impropriety affecting judicial impartiality?

• In the famous case of Bush v. Gore , 531 U.S. 98 (2000) , in which the Supreme Court shut down the recount of the narrowly contested 2000 presidential election giving victory to George W. Bush, the Court splintered on a narrow 5 to 4 vote—with all conservative justices voting in the majority. One of those conservative justices, Antonin Scalia, had a son who, at the time, was a law partner of Bush’s lead lawyer, Ted Olson, while Justice Clarence Thomas’s wife was actively working on behalf of the Heritage Foundation to solicit resumes for jobs in a potential Bush administration. 166

• In 2010, it was reported that Justices Clarence Thomas and Antonin Scalia appeared as featured guests at a secret political retreat organized by Koch Industries, which had been deeply involved in financing libertarian political causes.

• In September 2017, Justice Neil Gorsuch gave a speech at Trump International Hotel to The Fund for American Studies, which was involved in litigation to invalidate fees charged by unions for representation services provided to nonmembers, which was at the time pending review in the Supreme Court. (Gorsuch ultimately voted that such fees violated union members First Amendment rights in Janus v. AFSCME , 168 S. Ct. 2448 (2018) ).

• In 2016, Justice Ruth Bader Ginsburg stated of then-candidate Donald Trump, that she couldn’t “imagine what the country would be . . . with Donald Trump as president. . . . For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.” 167 The next year, she ruled against the Trump administration’s executive order banning Muslims from entering the United States.

5.When judges are elected to office on the basis of financial contributions by supporters, it raises serious concerns about fundamental objectivity in adjudication. How should judges deal with cases that implicate the interests of campaign donors?

Justice Lloyd A. Karmeier was elected to the Illinois Supreme Court in 2004 in a way that aroused significant controversy. 168 In the late 1990s, State Farm was subject to a large class action, where plaintiffs alleged that it violated the terms of its own policy by failing to pay for car replacement parts of “like kind and quality” when its insureds were involved in accidents. In the 1999, the case went to trial, and a jury returned a $1 billion verdict against the insurer. State Farm, predictably, appealed, and the case— Avery v. State Farm —made its way to the Illinois Supreme Court. The Illinois Supreme Court, whose members are elected in partisan elections, heard oral arguments in Avery in 2003—but (inexplicably) left the matter unresolved for two years. During this period, a seat opened on the Illinois Supreme Court, and Lloyd Karmeier, then a Republican circuit court judge, ran to victory buoyed by nearly $5 million in campaign contributions; at the time, the election set a record as the most expensive judicial election in the country. The problem, though, was that, of those donations, $350,000 came directly from State Farm and its employees and over $1 million came from industry groups in which State Farm was a member. Upon ascending to the Illinois Supreme Court, Justice Karmeier rejected calls for his recusal from Avery (the Illinois Supreme Court said whether to recuse was up to him), and he cast the deciding vote to reverse the lower court judgment against State Farm—saving the company some $1 billion. 169

Undaunted, the Avery plaintiffs then sued State Farm under a RICO theory, in a case called Hale v. State Farm , arguing that the insurance company had run a corrupt racketeering enterprise to elect Karmeier—essentially paying him to reverse the legitimate verdict against the insurer. 170

In advancing this novel argument, the plaintiffs relied on Caperton v. A.T. Massey Coal Co. , 556 U.S. 868 (2009) , in which the U.S. Supreme Court ruled that a West Virginia Supreme Court judge’s refusal to recuse after receiving more than $3 million in campaign contributions (three times the amount spent by the judge’s own campaign) from an executive of a coal company appealing a $50 million verdict against it, violated the plaintiffs’ due process rights. In its ruling, the Supreme Court stressed that the contributions in the judge’s election, which was decided by fewer than 50,000 votes, had “a significant and disproportionate influence on the outcome.” 556 U.S. 868 . In Hale , the plaintiffs argued that the State Farm contributions were as significant as those in Caperton , revealing additional contributions allegedly funneled by State Farm to Karmeier in secret that, when added to 117 the contributions already known, constituted nearly 75 percent of Karmeier’s fundraising total. The Hale case settled on the eve of trial in 2018 for $250 million. 171

A study of every state supreme court decision in all fifty states over four years found that elected judges are more likely to issue pro-business decisions as the amount of campaign contributions from business interests increases—but only in partisan elections. 172 Given that nearly all elected judges receive significant contributions from entities with cases that are actually or potentially pending before their courts, what should the threshold amount requiring disqualification be? Should there be a bright line rule? How would you craft it?

6.As Justice Karmeier’s case illustrates, judicial recusal operates both through bright line rules—a judge who has served as a lawyer on a matter now in front of her must recuse—and also through a general standard requiring disqualification if the judge’s impartiality “might reasonably be questioned.” How should judges interpret this general standard?

In Cheney v. United States District Court , 542 U.S. 367 (2004) , the Sierra Club and Judicial Watch sued Vice President Dick Cheney to force him to reveal records of which organizations had attended a Cheney-led task force on energy policy that ultimately made recommendations favorable to the oil industry. Three weeks after the Supreme Court agreed to hear the case, Cheney and Justice Scalia went duck hunting together in Louisiana, and Scalia flew with Cheney on Air Force Two to the hunting grounds. Scalia rejected the Sierra Club’s motion to recuse himself on impartiality grounds, arguing that, because the suit targeted Cheney in his professional, not personal capacity, and they were just friends, the recusal rule did not apply. 173 Moreover, Scalia argued that his recusal would harm the Supreme Court by bowing to political pressure and encouraging “so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons.” 174 With that logic, Scalia voted with the majority in favor of Cheney’s refusal to disclose the task force records.

From 2015 to 2017, there were 223 recusals by Supreme Court Justices, 88 by Justices Kagan and Sotomayor, mostly due to their former work as Solicitor General and Second Circuit judge, respectively. 175

7.What should happen when a lawyer deliberately selects co-counsel in order to force judicial disqualification? This is what happened in McCuin v. Texas Power & Light Co. , 714 F.2d 1255 (5th Cir. 1983) . In that case, defense counsel in a class action discrimination suit against Texas Power & Light Company added as co-counsel the brother of the presiding judge’s wife and 118 then promptly moved for the judge’s recusal. After a hearing on the matter, the court (acting through another judge to whom the case had been reassigned) found that defense counsel had intentionally manufactured the conflict to disqualify the presiding judge, who was viewed as sympathetic to the plaintiffs’ case. The Fifth Circuit Court of Appeals ruled that a lawyer who intentionally manufactures a disqualifying judicial conflict should himself be disqualified and the original judge reassigned. 176 Do you think this is the right result? Consider the fact that plaintiffs’ counsel elected to sue in a jurisdiction where it knew it would draw the sympathetic judge in the first place.

8.Is it fair that Justices of the United States Supreme Court, who sit at the pinnacle of the judicial system, are nonetheless exempt from its ethical rules? As Justice Roberts argued in his 2011 report on the state of the federal judiciary

Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body. . . . The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court. 177

Many people are not so confident as Roberts that the Justices can exercise the appropriate amount of personal discipline in policing their own conflicts. Indeed, a number of legislative proposals have attempted to make the Supreme Court more ethically accountable. Most recently, Representative John Sarbanes from Maryland introduced H.R. 1 , the For the People Act of 2019, which would (among a lengthy list of other voting and campaign finance reforms) require the Judicial Conference to “issue a code of conduct, which applies to each justice and judge of the United States . . . .” 178 The bill passed the House but was bottled up in the Senate. In 2017, Congresswoman Louise Slaughter from New York co-authored the Supreme Court Ethics Act, requiring Justices to follow the federal Code of Conduct, on the heels of revelations that, between 2009 and 2013, Justices Breyer, Roberts, and Alito voted in favor of 70 percent of companies filing amicus briefs in cases before the Court, in which the Justices held a financial interest. 179 In 2011, Senator Chuck Grassley introduced a bill that would have created an Office of the Inspector General of the Judicial Branch, appointed by the Chief Justice of the Supreme Court, with the power to conduct investigations of alleged misconduct by all federal judges, including Supreme Court Justices themselves.

What is your view of these legislative proposals? Do you find compelling reasons for self-regulation within the federal judiciary and the exemption of Supreme Court Justices from ethical oversight?

9.With regard to electoral constraints on judicial conduct, recall the controversy over Aaron Persky, a California state court judge who generated intense controversy in 2016 when he sentenced a male Stanford student to a lenient six-month sentence for sexually assaulting an unconscious woman (the maximum sentence was fourteen years). In issuing the sentence, Persky opined that the defendant would “not be a danger to others” and noted that “a prison sentence would have a severe impact on him,” while saying nothing about the impact on the victim. In the outrage that followed, a petition drive was launched to recall Persky, who had been elected in 2003 to the Santa Clara County Superior Court. Although a petition was circulated by over 90 law professors against the recall, objecting to the use of recall to police judicial misconduct, the recall succeeded and Persky was forced from the bench in 2018—the first recall of a sitting judge in 80 years.180 Do you think this was an appropriate sanction for what Persky did? Does it threaten the notion of judicial independence?

Chapter 4

The Advocate’s Role in an Adversary System

Introduction

A.The “Neutral Partisanship” Conception of the Lawyer’s Role

William H. Simon, “The Ideology of Advocacy: Procedural Justice and Professional Ethics”

1978 Wisconsin Law Review 29, 36–38 (1978).

Notes and Questions

1.In the above excerpt, Professor Simon uses the terms “neutrality” and “partisanship.” Other writers conceptualize these two principles in different terms. Another writer adds a principle of non-accountability: “When acting 123as an advocate for a client . . . a lawyer is neither legally, professionally, or morally accountable for the means used or the ends achieved.”1

2.Further, some commentators argue that these principles constitute the “standard conception of the lawyer’s role.”2 In so doing, they sometimes point to a famous speech from 1820, in which the British barrister Lord Henry Brougham declared:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.3

Lord Brougham’s speech prompted vigorous opposition at the time, and its premise continues to provoke controversy. Contemporary critics have objected that there is nothing “standard” about conceiving the lawyer’s role entirely in terms of these principles; many lawyers would soften these principles.4 For this reason, we identify these principles as the “Neutral Partisanship” framework without suggesting that it is the preferred—or the “standard”—view of legal ethics.

However we label them, the principles play out in different ways depending on the lawyer’s role. Simon, Schwartz, and Brougham associate them with the role of advocate, which is discussed in Chapter 7 below. For the lawyer’s role as negotiator, see Chapter 12. And for the role of counselor or advisor, see Chapter 10.

1.The Codes and Neutral Partisanship

Some commentators have expressed alarm that “downgrading” the zeal requirement from the text of a binding rule to a non-binding comment signals a weakened commitment.5 In practice, however, many lawyers believe that “zeal” continues to be the ethical standard that the Model Rules embody and that lawyers have no right to refrain from effective tactics even if they find them morally offensive.

As for the principle of neutrality, the Rules embody it explicitly in Rule 1.2(b): “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

2.Neutral Partisanship and the Question of Inadvertent Disclosure

In the discussion below, we address the question of how a lawyer should handle confidential material inadvertently sent from her adversary. This analysis helps to bring the above discussion into sharper relief, presenting a straightforward conflict between the ethics of Neutral Partisanship and what we might consider the ethics of fair play. The following two readings refer to the now-outmoded technology of fax machines, but the question they raise—whether to exploit inadvertent disclosure of confidential material by another party—is perhaps even more relevant in the world of digital technologies, where the possibility 125of inadvertent disclosure includes emails, shared files, thumb drives, and social media.6

ABA Formal Opinion 92–368 Inadvertent Disclosure of Confidential Materials

Monroe H. Freedman, “The Errant Fax”

But two state ethics committees have read the ABA opinion and have found it unpersuasive. The Ohio committee, in its Opinion 93–11, concluded that the unintended recipient is free to use the document, but that he should inform opposing counsel about it. And just last month, the Maine ethics committee, in Opinion 146 (Dec. 9, 1994), reached a similar conclusion. A California court, in Aerojet-General Corp. v. Transport Indemnity Insurance, 22 Cal.Rptr.2d 862 (1993), went further, holding that the lawyer may keep the document and need not inform opposing counsel.

Notes and Questions

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.7

Comment 3 to this Rule adds that whether the lawyer chooses to return the document unread or delete electronically stored information “is a matter of professional judgment ordinarily reserved to the lawyer.”

Thus, even after the 2002 amendment, no Model Rule explicitly prohibits a lawyer from reading the opponent’s missent document, or, for that matter, from any of the forms of snooping that the Formal Opinion cites, such as peeking at the adversary’s notes. Yet the Opinion is probably correct in assuming that most lawyers disapprove of such tactics, and it may well be correct that such widely condemned tactics violate the spirit of the Model Rules as expressed in its preamble.

However, Professor Freedman—an outspoken proponent of zealous advocacy—is on strong ground when he reads this argument as an admission that no rule prohibits a lawyer from reading and using inadvertently disclosed documents. Does Rule 4.4(b) change this situation? Freedman also asks rhetorically whether a client should lose the case because his or her lawyer doesn’t wish to be unsporting. What’s your view?

2.As to whether the mistakenly sent or produced document should be read or exploited, recall that Comment 3 to Rule 4.4(b) leaves this question to the lawyer, not the client. The Restatement (Third) of the Law Governing Lawyers, on the other hand, holds that “[t]he receiving lawyer may be required to consult with that lawyer’s client about whether to take advantage of the lapse.” Restatement, § 60 cmt. m.8 Which authority gets this question right? How much say should the client have in the matter? Rule 1.4(a)(2) requires the lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Does this help settle the question?

3.Numerous state and municipal bar associations have published ethics opinions on the subject of inadvertent disclosures. Most opinions require a lawyer who has inadvertently received privileged material and is aware of its confidential nature before reading it to refrain from examining the material—the position taken in ABA Formal Opinion 92–368. New York, on the other hand, strictly conforms to Model Rule 4.4(b), holding that the 130lawyer’s only obligation is to promptly notify the sender of the document’s receipt.9

Of course, it is very likely that the receiving lawyer will not know that a document is privileged without first reading it, so perhaps the more significant questions are whether lawyers can use the information and whether they must return the documents. Most opinions advise that lawyers may take advantage of confidential information that they have inadvertently received in order to further client interests.10 A few state bars hold that lawyers must not use such information and should return all inadvertently disclosed materials to opposing counsel.11 Significantly, only the Massachusetts bar has declared that the receiving lawyer must use the information if doing so would help the client—and yet this result seems to follow from an unqualified ethic of Neutral Partisanship. Does this mean that the profession is not committed to such an ethic? Do you agree with Formal Opinion 92–368 that “there are many limitations on the extent to which a lawyer may go ‘all out’ for the client”?

A lawyer who is preparing a document may electronically circulate the document in draft form among other lawyers in the firm for their review and comment. The other lawyers may insert their suggested revisions and other comments, some of which might address the strengths and weaknesses of the client’s position. If the final version of the document is electronically transmitted to opposing counsel, it may be possible for opposing counsel to discover the comments. The sender of the document may not be aware of the metadata embedded within the document, or that it remains in the electronic document despite the sender’s good-faith belief that it was “deleted.”12

The results can be highly damaging. “Examples of unintended releases . . . include one firm that posted a Word document online and, with two knowledgeable ‘clicks,’ a savvy viewer was able to discover that the client initially intended to sue someone other than the named defendant. In other cases, lawyers failed to effectively redact sensitive information.”13 Should 131lawyers be subject to sanctions for mining metadata? Or is looking for metadata that opposing counsel could have scrubbed but didn’t part of effective representation?

With digital technologies in mind, Comment 2 to Rule 4.4 now specifically provides:

[2]. . . . For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.14

Taking a stronger stance, ten states have held that receiving lawyers should refrain from proactively mining metadata.15 Which position makes the most sense?

In addition, according to the most recent ABA overview, all states that have weighed in require lawyers to take “reasonable care” not to transmit metadata inadvertently. Does your answer to the propriety of mining metadata depend on the adequacy of technology to perfectly scrub a document?16

5.If lawyers are prohibited from mining metadata, what would stop a sophisticated client from demanding that the lawyer forward documents along so that she can examine them? Must the lawyer refuse to send such documents to the client? May the lawyer refuse? Whose documents are they, the lawyer’s or the client’s?

Problem 1

You are a litigator in a large law firm. During the discovery phase of a complicated commercial proceeding in federal court, involving tens of millions of dollars, you are reviewing a thumb drive of documents that the adversary turned over a month earlier. In one folder you find a file of documents marked “CONFIDENTIAL: CONTENTS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE. UNAUTHORIZED PARTIES ARE PROHIBITED FROM READING THIS DOCUMENT.” On the assumption that this may be standard “boilerplate,” you begin to read one of the documents and quickly realize that it concerns the pending litigation and undoubtedly is protected by the attorney-client privilege. 132However, under Federal Rule of Evidence 502(b), if a party inadvertently discloses privileged information to another individual, that constitutes a waiver of the privilege unless the party took reasonable steps to prevent the disclosure and promptly took reasonable steps to rectify the error. Apparently, the file of documents was sent to you by mistake, and the documents in the folder were not password protected. You suspect that they contain information that would be quite valuable to your side in the litigation.

References: Rules 1.2, 1.3, 1.4, 4.4, 8.4; Fed. R. Evid. 502(b).

B.Neutral Partisanship and Role Morality

Is this concept of role morality—namely, a special morality associated with social or professional roles that differs from ordinary morality—justifiable? One critic of role morality is the lawyer-philosopher Richard Wasserstrom. In a well-known essay, Wasserstrom considers the “accusation . . . that the lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.”17 According to Wasserstrom:

Once a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to which the end will be put or the character of the client who seeks to utilize it. Provided that the end sought is not illegal, the lawyer is, in essence, an amoral technician whose peculiar skills and knowledge in respect to the law are available to those with whom the relationship of client is established.18

Wasserstrom observes that being an “amoral technician” requires some sort of justification—one cannot simply opt out of moral obligations at will. He believes that this problem is especially acute for lawyers:

The lawyer—and especially the lawyer as advocate—directly says and affirms things. The lawyer makes the case for the client. He or she tries to explain, persuade and convince others that the client’s cause should prevail. The lawyer lives with and within a dilemma that is not shared by other professionals. If the lawyer actually believes everything that he or she asserts on behalf of the client, then it appears to be proper to regard the lawyer as in fact embracing and endorsing the points of view that he or she articulates. If the lawyer does not in fact believe what is urged by way of argument, if the lawyer is only playing a role, then it appears to be proper to tax the lawyer with hypocrisy and insincerity. To be sure, actors in a play take on roles and say things that the characters, not the actors, believe. But we know it is a play and that they are actors. The law courts are not, however, theaters, and the lawyers both talk about justice and they genuinely seek to persuade. The fact that the lawyer’s words, thoughts, and convictions are, apparently, for sale and at the service of the client helps us, I think, to understand the peculiar hostility which is more than occasionally uniquely directed by lay persons toward lawyers. The verbal, role-differentiated behavior of the lawyer qua 134advocate puts the lawyer’s integrity into question in a way that distinguishes the lawyer from the other professionals.19

If lawyers seldom take such worries seriously, Wasserstrom suggests, that may be because a role morality like Neutral Partisanship, which permits lawyers to set moral scruples to one side, creates a “simplified intellectual world . . . that . . . is often a very comfortable one to inhabit.”20

Elsewhere, Wasserstrom insists on “a comprehensiveness, a universalistic dimension of morality, that is at odds with the more particularistic focus . . . that occurs within and through the perspective of roles.”21 Morality is “universalistic,” on this view, because to be moral is to transcend one’s own particular desires and loyalties, to recognize that all people have equal and intrinsic moral worth, and therefore to treat all those one encounters with equal respect and concern.

However, other philosophers have objected that this universalistic approach misses an important dimension of moral life: the significance of our attachments to particular people and groups—our friends, our family, our community, and (arguably) our clients. In the words of one philosopher:

Loyalty is neither egoism nor impersonal morality. . . . There is the morality of rules . . . and thou-shalt-nots. There is enlightened, rational egoism that fancies it can see that being a nice guy pays. And, different from these, but sharing features with each, are loyalties. Loyalties are part of what make our societal worlds go around.22

Here we see the decisive contrast. When does morality prevent us from playing favorites (notably, on behalf of clients)? When does it require us to play favorites? Does everyone share the same moral obligations, or does each “station” in life have its own unique “duties,” each tribe its own loyalties, each role its own script?

The view that morality imposes universal responsibilities appears across a wide range of cultures. It finds expression in the Golden Rule (“Do to men what you would wish men to do to you,” Matt. vii. 12), its cousins in the Hebrew Bible (“Love the stranger as thyself,” Levit. xix. 34), and the teachings of Confucius (“Never do to others what you would 135not like them to do to you,” Analects xv. 23).23 Each of these mandates suggests that, from the moral point of view, our common humanity demands that we should transcend local loyalties dictated by roles.

This idea was central to the work of the eighteenth-century philosopher Immanuel Kant, who claimed that the defining feature of the moral law is its universality—that it applies with equal force to everyone. Kant proposed that the test of whether a rule of action, or “maxim,” is morally acceptable is found in this formula: “Act only according to that maxim by which you can at the same time will that it should become a universal law.”24 In other words, one tests whether an act is morally permissible by asking: “What if everyone were permitted to do that?” Kant argued that his formula is equivalent to another rule: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.”25 He stressed the dignity that all humans share and argued that morality requires us to honor that dignity in everyone with whom we have dealings.

There are really two distinct propositions here: First, that everyone is bound by the same moral rules or obligations, and second, that everyone should be treated alike (as an end rather than a means). Though they are distinct, both propositions arise from the same source: the belief that we all possess human dignity and thus that, from a moral point of view, we are all each other’s equals. It is the second idea, that everyone should be treated with equal respect, that is of primary importance to legal ethics, for Neutral Partisanship requires systematically favoring clients over others.

Wasserstrom appears to be arguing from a Kantian understanding of ethics. It is a powerful position. As we have seen, however, critics have argued this understanding should be modified to make room for special loyalties. Even if the moral point of view demands that we ask whether our maxims could be accepted as universal laws, perhaps some of those laws extend only over our own occupational community, not over all human beings.

Not all theorists accept that the best way to think about legal ethics is through the “role morality” construct. W. Bradley Wendel argues that the legal system is above all a political institution, not a system of individual morality. The legal system enables people who may differ sharply in their views of right and wrong to resolve disputes peacefully. If lawyers follow their own moral outlooks rather than complying with the legal rules defining their institutional role, they subvert that important function of law in our pluralistic society. For this reason, 136Wendel argues that, except in the most extreme cases, lawyers should not take the morality of client ends and lawyer means into account except to the extent that the law itself rules out some ends or means. Thus, Wendel accepts the principle of neutrality. However, he also argues that the guiding value for lawyers should be fidelity to law, and in his view, that implies that zeal must never drive lawyers to distort the law or its institutions in the pursuit of client interests. On those grounds, Wendel does not endorse the principle of partisanship.26

1.Neutral Partisanship, Role Morality, and the Question of Client Selection

In February 1997, this issue came to a head when the prestigious New York law firm of Cravath, Swaine & Moore agreed to represent Credit Suisse, one of three big Swiss banks to come under international scrutiny for laundering stolen Nazi gold in the Second World War. Official U.S. documents from the 1940s detail how Credit Suisse dealt with Nazi gold, most of which was looted from countries overrun by German forces and some of which was taken from victims of the Holocaust. These documents, based on extensive electronic surveillance by U.S. and British intelligence, show that the bank accepted gold bars from Germany and made millions of Swiss francs available to Germany. A 1945 report by the U.S. Foreign Economic Administration names Credit Suisse Zurich as the most frequent violator of the Allied Code of Conduct concerning Swiss banks.27

Before deciding to represent the bank, the firm heard objections from several partners during an unusual “all hands” meeting at which the issue was extensively discussed. After the meeting, presiding partner Samuel C. Butler wrote a firm-wide memorandum explaining that the decision to represent the bank was “a matter of great moral consequence,” but arguing that Cravath could “make a terrible situation 137better” by helping the bank reach a “fair and just” solution that would bring “a satisfactory closure to a very dark chapter in history.”28

A dozen of the firm’s associates wrote a memorandum protesting the decision. Several threatened to resign. The memorandum provided:

It is our conviction that one cannot represent Credit Suisse in its role as bankers to those who committed genocide and do the justice we are all obliged to do the victims and survivors of the slaughter. The two are simply incompatible. It seems implausible that Cravath could both serve Credit Suisse and bring about the fair and honorable resolution for those who suffered at the hands of the Nazis and their collaborators. We suspect, even with the best intentions, Credit Suisse’s interest may be too closely connected with containing the financial consequences of scandal for justice to be served by our representation of them.29

The associates argued that the firm’s decision to represent Credit Suisse would lend to the bank the “imprimatur” of Cravath’s sterling reputation. “Whatever settlement is ‘cut,’ ” they wrote,

Credit Suisse earns through the Firm’s involvement a legitimacy worth more to it than the wealth it has hoarded. In other words, the fee they pay the Firm buys them that which one is most obligated not to give those implicated in Nazi crimes. . . . The continuing problem of the Holocaust is that all reactions are inadequate, and this is why one must be very aware of the messages now sent to the survivors and perpetrators and collaborators. How can we take on the role of counsel to Credit Suisse and send the right message about the catastrophe of the Holocaust and the actions that led to it, let alone the actions that profited from it.30

On the other hand, several “senior statesmen” of the New York bar and leaders in New York’s Jewish community supported Cravath’s representation. Arthur Liman argued that Cravath would provide “effective lawyers who will try to find a fair solution.”31 If responsible firms turn away such a controversial case, Liman argued, it might end up in the hands of lawyers who see “dollar bills,” and “that would be a disaster . . . I would not like to see this becoming a lawyer’s feast.”32 Ezra Levin, a Jewish community leader and named partner at New York’s Kramer, Levin, Naftalis & Frankel, similarly viewed this case as “an opportunity [for Cravath] to perform a service to its client which is also 138likely to coincide with the interest” of Jews seeking to recover their assets.33 Levin hoped that Cravath would persuade the banks “that cooperation, rather than stonewalling, will best help them maintain their valued franchise and recapture their goodwill.”34

Harvey L. Pitt, at the time a lawyer at Fried, Frank, Harris, Shriver & Jacobson, said he saw “a huge difference between [representing] Credit Suisse and [Libyan leader] Moammar Gadhafi,” and that Cravath should not be criticized. (He was alluding to an earlier incident in which a prominent Washington lawyer and former State Department Legal Adviser drew criticism for representing Gadhafi in connection with a notorious terrorist attack.) “The essential difference is that [Credit Suisse] is an upstanding financial institution whose general policy is to comply with all the rules and laws applicable. If it makes a mistake, it is entitled to a defense. But if someone is deliberately assassinating people and is an affront to the world of nations they don’t earn the same entitlement to legal representation.”

On the other hand, Paul Wolff, a partner at the Washington law firm Williams & Connolly, thought Pitt’s analysis made the question sound too easy. “I totally agree with the distinction Harvey made between Gadhafi and Credit Suisse, if in fact he properly depicts Credit Suisse,” Wolff said. “The tough one is if this is not a bank that simply went astray . . . but in fact acted beyond the law, that provided assistance to the Third Reich and is hiding behind a polished image over the years. . . . What does a firm do?”35

Problem 2

Notes and Questions

1.Legal ethicists Ben Heineman and David Wilkins suggest that a large firm’s decisions in accepting clients should be based on three general principles. The first is partner pluralism: Firms should recognize the moral agency of partners and the need for diversity of views, and so should have a presumption in favor of accepting matters partners bring to the firm, subject to the usual conflicts checks. A second principle involves screening by firm management based on core firm values, such as nondiscrimination and freedom of expression. A final principle is reputational screening based on business considerations.36

Do you agree with this framework? If so, do you believe Cravath made the correct decision?

2.A more recent controversy about choice of client involves Harvard Law Professor Ronald Sullivan’s decision to join the defense team of movie producer Harvey Weinstein, charged with rape and sexual abuse in the scandal that fueled the #MeToo movement. Sullivan has been described as “among the highest-profile criminal-defense lawyers in the country” because of his career representing mostly underprivileged people.37 He directs Harvard’s Criminal Justice Institute, a clinic; before coming to Harvard, Sullivan headed the Public Defender Service in Washington, D.C.

Until recently, Sullivan also served as dean of an undergraduate residential house, Winthrop House. Many students both in and out of Winthrop House expressed outrage and hurt over Sullivan’s representation of Weinstein. Harvard caused considerable controversy by removing him as dean, although it claimed the reasons had to do with failure to be effective in his administrative role, not his choice of clients.38 While Harvard’s decision and the student protests themselves raise significant issues, our concern here is simply with Sullivan’s decision to join the Weinstein defense team.

In a lengthy email to Winthrop House students, Sullivan vigorously defended the representation of unpopular clients. “It is particularly important for this category of unpopular defendant to receive the same process as everyone else—perhaps even more important. To the degree we deny unpopular defendants basic due process rights we cease to be the country we imagine ourselves to be.”39 In an interview, Sullivan said he took the case because “I decided that this case was sufficiently important to the rule of law,” although he would not go into the factors that led him to that conclusion (presumably, doing so would reveal confidential information).40 He emphasized that even wealthy and powerful defendants enter the 140criminal courtroom with a public presumption of guilt hanging over them. Sullivan added:

[L]awyers are not extensions or alter egos of their clients. Also, lawyers do not represent the ideology of their clients. Rather, lawyers are engaged in a long-standing tradition of service to people accused by the state. Just as surgeons don’t decline to work on people because they’re bad, lawyers too have these same obligations once they undertake a representation.41

In May 2019, however, Sullivan quit Weinstein’s defense team.

Criminal defense lawyer and law professor Lara Bazelon lambasted the student protestors who were outraged that Sullivan would represent Weinstein:

One of [the student] graffiti messages asked Sullivan, “Whose side are you on?” The answer should be obvious: the side of justice. Justice requires due process. In addition to being a law professor, Sullivan is a criminal defense lawyer, which means his job is to represent the accused—no matter how despised, no matter how heinous the accusation. That right—the Sixth Amendment right to a competent lawyer who can provide effective assistance of counsel—lies at the heart of our Constitution’s guarantee of due process.42

Yet there are arguments on the other side. Unlike indigent criminal defendants, Weinstein—a multi-millionaire—had the means to hire top-flight counsel. Nor did the criminal defense bar shun him; this is not a case where Sullivan was “the last lawyer in town.” Sullivan himself agrees that Weinstein would have no trouble finding highly qualified counsel.43 Does that undercut concerns about due process and Weinstein’s Sixth Amendment right to counsel?

Bazelon argues that “Sullivan is a criminal defense lawyer, which means his job is to represent the accused—no matter how despised, no matter how heinous the accusation.”44 That is true of a public defender, whose professional obligation is to take on whatever cases present themselves. Nevertheless, attorneys in private practice have a choice about whether to accept any given client. William Kunstler, a famous civil rights lawyer, once explained why he would not represent the Ku Klux Klan: “Everyone has a right to a lawyer, that’s true. But they don’t have a right to me.”45

3.Is the argument for zealous defense of an unpopular client stronger in the criminal than civil context? Consider the conduct of Lisa Bloom, a Los Angeles lawyer who has represented complainants in sexual harassment 141cases. She had business dealings with Weinstein and offered to help him defend his reputation as complaints began to surface. In a memo obtained by New York Times reporters, she offered to run counter ops on one of his accusers, Rose McGowan, to “call her out as a pathological liar,” and to place an article about her “becoming increasingly unglued so that when someone Googles her this is what pops up and she is discredited.”46 Is this a justifiable application of Neutral Partisanship principles?

4.Legal ethicists Monroe Freedman and Abbe Smith see the choice to represent a client as a moral decision of the lawyer, for which the lawyer is morally accountable. It may seem at first that their argument would prevent lawyers from ever representing morally repugnant clients. However, Freedman and Smith make it clear that lawyers can justify representing such clients if the representation serves constitutional, procedural, or other public values. For example, in Freedman and Smith’s view, lawyers are justified in representing guilty criminal defendants because doing so furthers Fifth and Sixth Amendment values and helps safeguard civil liberties against potential government abuse. Civil cases can likewise serve important public values, even when one’s clients are morally odious.47

Deborah Rhode argues for a framework that would “make the merits matter.” She would require the lawyer:

to assess [matters] from a moral as well as legal vantage. . . . Of course, in a profession as large and diverse as the American bar, different lawyers will reach different judgments about what is in fact equitable. Although such judgments should be defensible under accepted ethical principles, their application will necessarily reflect individuals’ own experiences and commitments. … [T]he framework proposed here does not demand that lawyers reach the same results in hard cases. It demands rather that lawyers recognize that such cases are hard, and that they call for contextual moral judgments.48

5.In other common law jurisdictions, solicitors (office lawyers) have the same freedom to reject clients as American lawyers, but barristers (trial lawyers) are subject to the “cab rank rule,” which requires them to accept any brief that is offered.49 Does this rule make the barrister’s role either an amoral or immoral one? Should American trial lawyers operate under a similar ethical requirement?

6.Bearing these points in mind, how should a lawyer decide which cases to take and which to avoid? What happens if moral problems with the client’s position do not become clear until after an attorney has begun 142representation? What positions might you find sufficiently “repugnant” to justify withdrawal under Rule 1.16(b)(4)?

C.For and Against Neutral Partisanship

1.Justifying the Lawyer’s “Amoral” Role

The Rights of the Client

Our first premise is that law is intended to be a public good which increases autonomy. The second premise is that increasing individual autonomy is morally good. The third step is that in a highly legalized society such as ours, autonomy is often dependent upon access to the law. . . . For most people most of the time, meaningful access to the law requires the assistance of a lawyer. Thus, the resulting conclusion. . . . If the conduct which the lawyer facilitates . . . is not unlawful—then this line of thought suggests that what the lawyer does is a social good.50

Richard Wasserstrom similarly notes that if lawyers decline on moral grounds to pursue their clients’ legal rights, the legal profession may exercise undue power as it determines who gets to exercise their legal rights and who does not. Pepper echoes this fear that moral “screening submits each . . . to rule by an oligarchy of lawyers.”51 Other commentators also have argued that clients’ rights should be lawyers’ paramount concern and have criticized lawyers who follow their own consciences and by doing so diminish client autonomy.

To critics of Neutral Partisanship, these are strong arguments, but they are by no means decisive. First, clients’ rights are not the only rights at stake in legal disputes, and when enhancing a client’s liberty or autonomy injures others, it must be shown that the gain excuses the 143wrong. Second, the “oligarchy” argument relies on an imperfect analogy. As Alan Goldman has remarked:

The major fallacy in this argument . . . is the implicit assumption that lawyers act as a corporate body to determine collectively how clients may act. In fact, they do not form such a body. They do not vote on how cases should be pursued, but rather act as individuals whose moral opinions may differ among themselves. . . . If an individual lawyer refuses to do for a client that which he feels the client has no right to do, the client can always seek another lawyer.52

Only in the exceptional case in which the lawyer is the “last in town” are the client’s rights necessarily at risk.53

The Moral Interests of the Lawyer

A lawyer is a friend in regard to the legal system. He is someone who enters into a personal relation with you—not an abstract relation as under the concept of justice. That means that like a friend he acts in your interests, not in his own; or rather he adopts your interests as his own. I would call that the classic definition of friendship. To be sure, the lawyer’s range of concern is sharply limited. But within that limited domain the intensity of identification with the client’s interests is the same.54

Fried then presses two points. First, each of us has a right to privilege the interests of our own friends, even if we could benefit more people by distributing our concern more broadly. We are not morally obligated to treat everyone in the world equally. An essential component of the good life is to be able to pay special attention to one’s family and friends. To deny us that right would be to infringe on our moral personality.

Fried’s second point is that favoring our friends is justifiable because friendship is itself a source of moral value. Reasoning by analogy, Fried concludes that since clients are special-purpose friends, an advocate cannot be criticized for favoring their interests over the interests of justice. Neutral Partisanship follows from this conception of “the lawyer as friend.”

Fried’s argument has attracted numerous comments and criticisms. Edward Dauer and Arthur Leff object that the friendship analogy is weak, because lawyers and friends share no common bond apart from their professional relationship. A friend, according to Fried, is someone 144who adopts our interests as his or her own. But, Dauer and Leff object, that definition of friendship begs the question; it means “a lawyer is like a friend . . . because, for Professor Fried, a friend is like a lawyer.”55 Along those same lines, Norman Spaulding has argued that the lawyer’s professional identity is rooted in ideals of service to the client, not personal identification with the client.56 William Simon goes further. Focusing on the fact that typically a lawyer becomes the client’s “friend” only for pay, Simon maintains that Fried has formulated the classical definition not of friendship but of prostitution.57

By contrast, Susan Wolf agrees with Fried’s friendship analogy; however, she argues that by using it to defend Neutral Partisanship, Fried has drawn the wrong conclusion:

If one adopts some interests as one’s own, it would seem one becomes to that extent personally accountable for them. Thus, if the interests are immoral, one can be personally blamed for having them. If, on the other hand, the lawyer is not to be blamed for the immorality of the client’s goals, this would have to be because these goals are not identified with the lawyer’s goals.58

Despite these objections, many lawyers will recognize a large grain of truth in Fried’s insistence on the personal and intimate character of legal services, which implies a large measure of trust on the part of the client and loyalty on the part of the lawyer. “The lawyer as friend” can at times be quite an apt metaphor.

The Interests of the System

Finally, some commentators seek to justify Neutral Partisanship by reference not only to the interests of clients, or of lawyers, but also to the nature of the American legal system. We have seen one such argument already: Professor Wendel’s point that in a pluralistic society—that is, a society where people do not necessarily agree about questions of value and morality—the legal system allows them to settle disputes without every issue escalating into an ultimate clash of values. The legal system is designed to accommodate many people’s different conceptions of how to live; for lawyers to interfere with clients’ exercise of their legal rights undermines the authority of law.59

Other writers also emphasize the connection between the legal system and maintaining a pluralist society.60 Daniel Markovits emphasizes that a lawyer is usually necessary for people to participate in adjudication, and their sense of participation gives the system legitimacy. If people could not trust their lawyer to represent their views non-judgmentally, trust in the system would erode and it could no longer serve its purpose of resolving disputes peaceably.61 Markovits labels the advocate’s virtue “negative capability,” a phrase he borrows from the poet John Keats, who used it to describe the way that a poet must shine light on the subject of the poem, not on the poet’s own self. In the same way, by suppressing their own convictions, advocates are able to give full voice to their clients’.62

Perhaps the most common argument for Neutral Partisanship rests on the nature of the adversary system. At its core, the adversary system consists of three features: adjudication by an impartial tribunal, formal procedural rules, and party responsibility for the presentation of their own cases.63 This third feature inspires the principles of partisanship and neutrality: Lawyers’ role is to advance their clients’ cases (partisanship), without regard to their own view of its moral implications (neutrality).

Of course, law practice is by no means all litigation and, as such, not all law practice directly involves the adversary system. Nevertheless, lawyers find it natural to model client representation on the principles of the adversary system. For that reason, the following discussion focuses on the adversary system and the various justifications it provides for this Neutral Partisan role.

2.The “Search for Truth” and the Protection of Rights

Lon L. Fuller and John D. Randall, “Professional Responsibility: Report of the Joint Conference of the ABA and AALS”

44 American Bar Association Journal 1159, 1160–61 (1958).

3.Critiques of the Adversary System and, by Extension, Neutral Partisanship

Best Way to Establish the Truth?

David Luban, “Twenty Theses on Adversarial Ethics,” in Beyond the Adversarial System

Notes and Questions

Which system is likely to produce more accurate results? John Langbein has argued that German civil procedure reduces lawyer games and discovery 150costs, and eliminates surprise evidence at trial.64 But, by reducing the role of lawyers, it may lead to less thorough discovery. The late John Merryman, another eminent comparativist, discusses the debate between adversarial and inquisitorial criminal trials:

The debate is clouded by ignorance of the law and practice in civil law nations and by preconceptions that are difficult to dispel. In the end, a statement made by an eminent comparative scholar after long and careful study is instructive: he said that if he were innocent, he would prefer to be tried by a civil law court, but that if he were guilty, he would prefer to be tried by a common law court. This is, in effect, a judgment that criminal proceedings in the civil law world are more likely to distinguish accurately between the guilty and the innocent.65

4.Consider two important differences between American and German procedure:

• Experts: In the United States, the parties engage their own expert witnesses. In Germany, by contrast, courts will appoint an expert witness if they believe one is necessary; however, litigants rarely are able to rebut the adverse testimony of such an expert with an expert of their own, and judges may give undue weight to an expert they have chosen.

• Preparation of Witnesses: In the United States, pretrial preparation of witnesses is commonplace, and, as we discuss in Chapter 7, there are few limits on coaching the witness before the trial. Indeed, while lawyers may not suborn perjury or knowingly introduce false testimony, a lawyer who fails to interview witnesses carefully and prepare them for the rigors of trial, perhaps even rehearsing (“mooting”) them, has done an inadequate job, verging on malpractice. In Germany, by contrast, witness preparation is forbidden and the ethics rule on interviewing witnesses provides that “in all cases even the appearance of impermissible influence is prohibited.”66

What are the relative advantages of these contrasting practices? Which approach is more apt to surface the “truth?”

Best Way to Protect and Promote Individual Rights?

[A] trial is far more than a search for truth, and the constitutional rights that are provided by our system of justice may well outweigh the truth-seeking value—a fact which is manifest when we consider that those rights and others guaranteed by the Constitution may well impede the search for truth rather than further it. What more effective way is there, for example, to expose a defendant’s guilt than to require self-incrimination, at least to the extent of compelling the defendant to take the stand and respond to interrogation before a jury? [However,] even the guilty accused has an ‘absolute constitutional right’ to remain silent.67

Good criminal defense lawyers often counsel a client to keep silent during interrogation and trial. They also attempt to suppress inculpatory evidence, even though doing so will obstruct the search for truth. Criminal procedure allows the defense attorney to take these and similar actions in order to safeguard legal rights. Similarly, in civil trials, counsel frequently invoke the attorney-client privilege or challenge discovery requests, even though such actions interfere with the search for truth.

What can justify ranking the preservation of the legal rights, even of guilty clients, ahead of accurate fact-finding? The most plausible answer seems to be that rights are values of a different, more fundamental, order than the pursuit of factual accuracy. In the words of Ronald Dworkin: “Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification . . . for imposing some loss or injury upon them.”68 Individual rights trump collective goals, even a goal as important as legal fact-finding.

Under this reasoning, the adversary system exists in order to provide litigants with the best opportunity to promote their legal rights, and the advocate’s job is to serve as a champion of those rights. Yet that justification, too, is susceptible to criticism, as the following selection makes plain.

Deborah L. Rhode, In the Interests of Justice

Problem 3

b)A seasoned trial litigator repeatedly makes unsustained evidentiary objections in order to disrupt the flow of her adversary’s 155presentation and distract the jury from damaging evidence.69 She also refuses to consent to a rescheduling request by an opposing lawyer whose wife is undergoing major surgery on the grounds that it would seriously inconvenience her expert witnesses. Her firm has hired investigators to look into the private lives of adversaries.

References: Rules 3.1, 3.4, 3.5, 8.4.

Notes and Questions

3.Suppose a lawyer agrees to a request of opposing counsel for a continuance in order to deal with a family emergency. The lawyer later realizes that his opponent will suffer a default judgment unless she gets a court approval for the continuance. Can the lawyer alert her to that fact, even though it will mean forgoing a default judgment for the client? Does the lawyer need to get the client’s approval under Rule 1.4(a)(2), which requires reasonable consultation with the client “about the means by which the client’s objectives are to be accomplished?”70

4.In a variation of the Dalkon shield tactics addressed above, a plaintiff who alleged she had contracted AIDS by a contaminated needle left in her hospital bedding was cross examined by the hospital’s lawyer about her love life and abortions. The doctor claimed that the questions were relevant to whether she might have contracted the disease through sexual intercourse or transfusions. Before the case went to the jury, the defendant settled for $1.35 million.71 The plaintiff’s lawyer described opposing counsel as “disgusting and venomous” and told a New York Times reporter that the fact that the plaintiff was on trial during the final days of her life was “a terrible indictment of the adversary system.”72 Was it?

5.One notorious case in which lawyers used private investigators to help discredit adversaries involves car manufacturers’ attempt to smear Ralph Nader after his expose of safety defects. A more recent example involves lawyer David Boies’s negotiation of a contract for Harvey Weinstein with the Black Cube detective firm to dig up dirt on one of his sexual abuse 156complainants and on journalists who were looking into the allegations.73 Do any of these cases cross a line? Why or why not?

In a subsequent New York Times profile, Boies defended his role in the Weinstein case, along with his representation of Theranos, a company accused of massive fraud, where his efforts reportedly included intimidating whistleblowers. Boies stated:

A lawyer can choose what clients to represent. A lawyer does not have the choice of how to represent a client. A lawyer is duty-and-honor-bound to represent a client effectively and aggressively, within the bounds of the system itself. A lawyer does not have the right to abandon that client under fire, except in extraordinary circumstances.74

Do you agree? If, as some argue, Boies had reason to suspect that Weinstein was engaged in serial sexual abuse, would that constitute reasons to abandon the client or at least refrain from seeking information that Weinstein could use to intimidate complainants?75 (We include an extended case study of the multi-issue Boies representation in the separate volume of case studies accompanying this book.)

D.Alternatives to Neutral Partisanship

A natural question at this juncture is what alternatives are available in the United States to the Neutral Partisanship conception. Some experts believe that alternative conceptions of professional ethics were prevalent in the eighteenth and nineteenth centuries.76 Clearly the historical record reveals considerable disagreement on the proper relationship between the lawyer’s and the client’s conscience.

Elihu Root, a founder of the firm that later became Cravath, Swaine & Moore, is remembered for the adage “[t]he client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how”—a view that comes quite close to Neutral Partisanship.77 Yet Root’s contemporary, Louis Brandeis—also a major corporate lawyer before ascending to the Supreme Court—once wrote a memorandum to himself (entitled “The Practice of Law”) which directed, “[a]dvise client what he should have—not what he 157wants”78—an uncanny counterpoint to Root’s adage. Legal historian Robert Gordon has argued that in practice as well as theory, the nineteenth century corporate bar found itself divided: on the one hand, offering its clients zealous representation, while, on the other hand, engaging in progressive reforms sometimes antithetical to client interests.79

Several contemporary writers have proposed alternatives to Neutral Partisanship. William Simon argues that lawyers should pursue legal justice, which he carefully distinguishes from the lawyer’s own moral values. Legal justice means justice by the lights of the values inherent in the law. What legal justice requires depends upon the context.80 When a statute or rule is itself consistent with the basic values of a legal system, “pursuing justice” might require asserting the statute in order to further its underlying policy. But if the statute itself violates more fundamental legal values (such as fairness), pursuing justice might lead a lawyer to find loopholes around the statute, treating it narrowly and formalistically even if that frustrates its purpose. In situations where an advocate can count on opposing counsel to uphold his or her client’s rights, legal justice may be served if both sides act as Neutral Partisans. But in a context such as Rita’s Case, where opposing counsel is effectively out of the loop, an approach that considers the child’s interests as well as the client’s may be necessary to achieve the kind of legal justice that the adversary system contemplates.

Another prominent theorist, W. Bradley Wendel, writes that “the lawyer-client relationship should be structured by the ideal of fidelity to law—not to clients.”81 According to this conception, lawyers cannot twist the law to suit their clients’ ends, for example by writing a legal advisory opinion that uses dubious arguments to reach an outcome the client desires.

By contrast to Simon’s emphasis on legal justice and Wendel’s on fidelity to law, David Luban has argued that the adversary system is too weakly justified to support a role morality that diverges widely from non-professional morality. As a result, lawyers in their professional roles should hold themselves just as accountable for their actions as they would be in ordinary, non-legal circumstances. Thus, if intimidating injured women into dropping legitimate lawsuits by forcing them to answer humiliating “dirty questions” (see Problem 3, supra) is wrong for a non-lawyer to do, it is wrong for a lawyer to do as well.82 The primary 158exception is in criminal defense, where, as we discuss in Chapter 8, adversarial advocacy is strongly justified by the (constitutional) values of protecting people from the abuse of state power.

Deborah Rhode has similarly argued for:

an alternative framework for the advocate’s role that needs to be ethically justifiable in principle and consistently reinforced in practice. At its most basic level, such a framework would require lawyers to accept personal moral responsibility for the consequences of their professional actions. Attorneys should make decisions as advocates in the same way that morally reflective individuals make any ethical decision. Lawyers’ conduct should be justifiable under consistent, disinterested, and generalizable principles.

These moral principles can, of course, recognize the distinctive needs of lawyers’ occupational role. Ethically responsible decisionmaking always takes into account the context and capacity in which a person acts. The extent of attorneys’ responsibilities for client conduct will depend on their knowledge, involvement, and influence, as well as on the significance of values at stake.

However, unlike the bar’s prevailing approach, this alternative framework would require lawyers to assess their obligations in light of all the societal interests at issue in particular practice contexts. An advocate could not simply retreat into some fixed conception of role that denies personal accountability for public consequences or that unduly privileges clients’ and lawyers’ own interests. Client trust and confidentiality are entitled to weight, but they must be balanced against other equally important concerns. Lawyers also have responsibilities to prevent unnecessary harm to third parties, to promote a just and effective legal system, and to respect core values such as honesty, fairness, and good faith on which that system depends. In accommodating those responsibilities, lawyers should, of course, be guided by relevant legal authority and bar regulatory codes. Respect for law also is a fundamental value, particularly among those sworn to uphold it. Adherence to generally accepted rules also serves as a check against the decision maker’s own bias or self-interest. But . . . attorneys may at times confront exceptional cases in which the applicable rules are so inadequate that reference to broader moral principles is necessary.83

Under the Neutral Partisanship conception, lawyers are not morally accountable for their clients’ ends, provided these are lawful. Nor can lawyers be held morally responsible for their choice of clients or for lawful 159means in pursuing client’s ends. As seen above, most alternatives to Neutral Partisanship insist on some measure of moral accountability. This need not take the form of legal liability, which raises practical concerns about administrability, fairness, and the danger of abuse. Moral accountability refers to accountability before the court of conscience, not before courts of law. However, the following section examines instances where the limits to partisanship are indeed backed by legal sanctions.

Notes and Questions

E.The Limits of Partisanship

In this final section, we consider cases, such as those involving terrorists or members of organized crime, in which lawyers have faced criminal charges for actions taken on behalf of clients. Usually, this occurs when the client is a notorious criminal figure—for example, an organized crime boss—and the prosecutor concludes that the lawyer has crossed the line between a “criminal lawyer” and a “lawyer-criminal.”84 These examples suggest the legal limits of Neutral Partisanship. Such cases raise, in the starkest terms, the questions of when zealous advocacy makes a lawyer accountable for pursuing the client’s ends, and whether such legal accountability is a good idea.

United States v. Cueto

United States Court of Appeals, Seventh Circuit
151 F.3d 620 (1998).

n Bauer, Circuit Judge.

After a jury trial, Amiel Cueto was convicted of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and three counts of obstruction of justice, in violation of the omnibus clause of 18 U.S.C. § 1503. The district court sentenced Cueto to 87 months imprisonment and imposed monetary penalties. Cueto now appeals his convictions and sentence. . . . For the following reasons, we affirm.

Cueto was indicted for “conspiracy to defraud the United States,” in violation of 18 U.S.C. § 371, “alleging that he misused his office as an attorney and unlawfully and intentionally conspired with Venezia . . . to impede, impair, obstruct, and defeat the lawful function of the FBI, the grand jury, and the federal district court in connection with the investigation, indictment, and prosecution of Venezia, B & H, and the illegal gambling operation and racketeering enterprise.” The indictment alleged that Cueto and Venezia’s business relationship created Cueto’s financial motive for his participation in the conspiracy, in which he endeavored to protect the illegal gambling enterprise and to maintain its 161continued operation in order to safeguard his personal financial interests. In addition to the conspiracy charges, the government charged obstruction of justice and alleged “that Cueto endeavored to use his office as an attorney to influence, obstruct, and impair the due administration of justice in various court proceedings.”]

Cueto asserts several arguments with respect to his convictions . . . for obstruction of justice, contending that the omnibus clause of § 1503 is unconstitutionally vague as applied to the conduct charged in the indictment. . . . Cueto argues that “much of what lawyers do—are attempts to influence the justice system,” and that the omnibus clause of § 1503 was not intended to apply to the type of conduct charged in the indictment. Questions regarding the constitutionality or scope of a statute are reviewed de novo.

. . . The omnibus clause of § 1503 is a catch-all provision that states:

18 U.S.C. § 1503. This clause was intended to ensure that criminals could not circumvent the statute’s purpose “by devising novel and creative schemes that would interfere with the administration of justice but would nonetheless fall outside the scope of § 1503’s specific prohibitions.” “The obstruction of justice statute was drafted with an eye to ‘the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined.’ ”

We are not persuaded by Cueto’s constitutional challenges, and his focus is misplaced. The government’s theory of prosecution is predicated on the fact that Cueto held a personal financial interest in protecting the illegal gambling enterprise, which formed the requisite corrupt intent for his conduct to qualify as violations of the statute. Cueto focuses entirely on the legality of his conduct, and not the requisite criminal intent proscribed by § 1503. It is undisputed that an attorney may use any lawful means to defend his client, and there is no risk of criminal liability if those means employed by the attorney in his endeavors to represent his client remain within the scope of lawful conduct. However, it is the corrupt endeavor to protect the illegal gambling operation and to 162safeguard his own financial interest, which motivated Cueto’s otherwise legal conduct, that separates his conduct from that which is legal.

Even though courts may be hesitant, with good reason and caution, to include traditional litigation-related conduct within the scope of § 1503, the omnibus clause has been interpreted broadly in accordance with congressional intent to promote the due administration of justice and to prevent the miscarriage of justice, and an individual’s status as an attorney engaged in litigation-related conduct does not provide protection from prosecution for criminal conduct. . . . Cueto’s arguments have no merit. As a lawyer, he possessed a heightened awareness of the law and its scope, and he cannot claim lack of fair notice as to what conduct is proscribed by § 1503 to shield himself from criminal liability, particularly when he was already “bent on serious wrongdoing.” More so than an ordinary individual, an attorney, in particular a criminal defense attorney, has a sophisticated understanding of the type of conduct that constitutes criminal violations of the law. . . . It is true that, to a certain extent, a lawyer’s conduct influences judicial proceedings, or at least attempts to affect the outcome of the proceedings. However, that influence stems from a lawyer’s attempt to advocate his client’s interests within the scope of the law. It is the “corrupt endeavor” to influence the due administration of justice that is the heart of the offense, and Cueto’s personal financial interest is the heart of his corrupt motive. . . .

We have carefully examined the fears articulated by the National Association of Criminal Defense Lawyers, in addition to the arguments put forth by the defendant, that a decision upholding the application of the omnibus clause of § 1503 to litigation-related conduct may deter or somehow chill the criminal defense lawyers in zealous advocacy, and we find those concerns to be exaggerated, at least as considered in light of the facts in the present case. Although we appreciate that it is of significant importance to avoid chilling vigorous advocacy and to maintain the balance of effective representation, we also recognize that a lawyer’s misconduct and criminal acts are not absolutely immune from prosecution. We cannot ignore Cueto’s corrupt endeavors to manipulate the administration of justice and his clear criminal violations of the law. As the First Circuit recognized in Cintolo:

Nothing in the caselaw, fairly read, suggests that lawyers should be plucked gently from the maddening crowd and sheltered from the rigors of 18 U.S.C. § 1503 in the manner urged by appellant and by the amici. Nor is there sufficient public policy justification favoring such a result. To the contrary, the overriding public policy interest is that “the attorney-client relationship cannot . . . be used to shield or promote illegitimate acts. . . .” “Attorneys, just like all other persons, . . . are not above the law and are subject to its full application under appropriate circumstances.”

Accordingly, we conclude that the omnibus clause of § 1503 may be used to prosecute a lawyer’s litigation-related criminality and that neither the omnibus clause of § 1503 nor this court’s construction of the term “corruptly” is unconstitutionally vague as applied to the conduct charged in the indictment for which Cueto was convicted. . . . [T]he record adequately supports the conclusion that Cueto’s conduct, though nominally litigation related conduct on behalf of his client, was undertaken with the corrupt intent to protect Venezia, Venezia’s associates, and his business from criminal prosecution and to safeguard his personal financial interest in the illegal gambling operation, whatever the costs and consequences to the due administration of justice.

Notes and Questions

1.What is the difference between zealous advocacy on behalf of a suspected racketeer and obstruction of justice? Is it only the lawyer’s “corrupt” motive? What made Cueto’s motive corrupt? Is it only his business dealings with his client? Many lawyers have business dealings with clients.85 Is it his financial dependence on his client? If so, how is Cueto different from corporate in-house counsel, many of whom are paid in shares of the company? Is it that the client is engaged in criminal activity? Isn’t that often true of criminal defenders’ clients? What if a corporation is convicted of criminal activity? Could their general counsel be criminally liable for legally opposing the investigation?

2.How, if at all, can Cueto be reconciled with the proposition that lawyers are not accountable for pursuing their clients’ ends through use of the legal system? What were Cueto’s “clear violations of the law”?

One possible answer is that Cueto’s business dealings with Venezia made him a partner in Venezia’s racketeering, rather than simply a lawyer representing a racketeer. However, the government did not prosecute Cueto as a racketeer or as an accomplice in racketeering—perhaps because it did not have the evidence. The government prosecuted him only for his lawyering activities, which obstructed justice by disrupting the government’s investigation of Venezia. (The conspiracy charge is basically conspiracy to obstruct justice.) Was that prosecution appropriate?

3.The Restatement (Third) of the Law Governing Lawyers cautions in § 8: “The traditional and appropriate activities of a lawyer in representing a client in accordance with the requirements of the applicable lawyer code are relevant factors for the tribunal in assessing the propriety of the lawyer’s conduct under the criminal law.” How much help would this section provide to Cueto?

4.One of the most highly-publicized prosecutions of lawyers for their conduct as advocates concerned half-a-dozen attorneys representing members of the Cali cocaine cartel (now defunct, but viciously active in the 1990s). After raiding their offices, the government indicted three lawyers for money laundering, soliciting false statements from drug defendants, and conspiring with their clients to import cocaine. The latter charge was the most controversial. The government’s theory was that the lawyers were so deeply involved in advising their clients how to continue their activities with impunity that they had become co-conspirators. According to federal prosecutors, some of the lawyers conveyed death threats from Cali or paid hush money to captured suspects in Florida. Some allegedly sought to protect the reputed heads of the Cali cartel by obtaining false affidavits. The lawyers were also accused of arranging bail with the knowledge that their clients would leave the country.

Three of the lawyers were former federal prosecutors, and another, Michael Abbell, was a Harvard Law School graduate who had served nearly twenty years at the Department of Justice, rising to head the Office of International Affairs. An expert in extradition, he went into private practice and was hired to help Miguel Rodriguez-Orejuela, a reputed Cali cartel kingpin, fight extradition from Spain to the United States. He later helped Rodriguez in other matters.

The Miami defense bar believed that the indictments were an attempt to intimidate defense lawyers representing drug clients (the so-called “white powder defense bar”). “They’re charging [the lawyers] with the crimes of their clients,” commented Miami attorney Roy Black, who represented Abbell. “The worst part of this,” he added, “is the prosecutors who obtained the indictment were the same prosecutors who opposed these lawyers in a drug case.”86 Other defense counsel believed that the indictments broke new 165ground by criminalizing client-representation activities that had not previously been regarded as illegal.

After several trials, Abbell and attorney William Moran were convicted on a number of charges, but Senior U.S. Judge William M. Hoeveler threw out all their convictions except those for money-laundering conspiracy. “The lawyers did some things that were highly unprofessional and, indeed, unethical,” Judge Hoeveler explained. “I don’t think they should practice law again. That doesn’t make them part of a racketeering conspiracy.”87 For the money laundering charge, Abbell was sentenced to seven years, Moran to five years, and former federal prosecutor Donald Ferguson to two years.

5.Perhaps the most startling of the Cali convictions was that of another former federal prosecutor, Joel Rosenthal. When a Cali member was arrested in Texas in 1991, Rosenthal retained a lawyer there to represent him. He did so with $65,000 in cash from reputed Cali kingpin Miguel Rodriguez, which he first deposited in his own trust account. Rosenthal did not disclose the source of the fees to the Texas lawyer.

The government claimed that Rosenthal’s activity constituted money laundering and concealment. The money-laundering statute, 18 U.S.C. § 1957(a), penalizes anyone who “knowingly engages or attempts to engage in a monetary transaction in criminally derived property that is of a value greater than $10,000.” Rosenthal pled guilty. Norman Muscowitz, a former federal prosecutor who represented Rosenthal, calls the outcome “tragic.” He explains: “Except for this crime, Joel has had a long and honorable career as an attorney.”88

Did Rosenthal cross the line from criminal lawyer to lawyer-criminal? Do such prosecutions deter lawyers from vigorously defending those accused of notorious criminal activity? Or does the government have a legitimate interest in discouraging attorneys from being “on retainer to the Mafia”?89

6.How far can a lawyer go in representing a terrorist or an accused terrorist without running afoul of the law? In pursuit of terrorism suspects, the government has frequently relied on two criminal statutes prohibiting “material support” for terrorism. Material support has a broad definition, which includes providing “expert advice or assistance”—meaning “advice or assistance derived from . . . specialized knowledge”—and “personnel (1 or more individuals who may be or include oneself).” 18 U.S.C. § 2339A(1), (3). The crucial question for lawyers is whether, by representing an alleged terrorist, a lawyer has provided expert advice or assistance, or personnel. If so, the lawyer runs the risk of prosecution and lengthy imprisonment.

The answer may depend on which of two material support statutes is involved. Title 18, § 2339A prohibits providing material support items “knowing or intending that they are to be used in preparation for, or in 166carrying out” terrorist crimes, while § 2339B prohibits knowingly providing material support to a foreign terrorist organization (FTO), knowing that they have been so designated by the U.S. Government. The statutes also criminalize attempts and conspiracies to provide material support to terrorists. Notice the difference in mens rea between the two statutes. Section 2339A requires that the accused not only provided material support but did so knowing or intending that the support would be used to facilitate terrorist crimes. Section 2339B requires no such knowledge or intention. All it requires is that the accused has knowingly provided material support to an organization that he or she knows has been designated as an FTO. Thus, for example, someone who donates money to a known FTO has violated § 2339B even if he or she believes that the money would not be used to commit crimes. What about someone who provides legal services to a designated FTO? Consider the following problem.

Problem 4

Your research immediately turns up Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). In Holder, the Supreme Court rejected a constitutional challenge to the material support statute by a human rights organization whose mission was teaching peace-making to FTOs in Turkey and Sri Lanka. Most relevant for you, during the Holder litigation, the government specifically asserted that the material support statute would prohibit lawyers from writing an amicus brief on behalf of an FTO. However, although the Court specifically mentioned this assertion, it declined to comment on its validity because it was a hypothetical not raised by the facts of the case. In his dissenting opinion, Justice Breyer also remarked on the government’s contention that it would be illegal to file an amicus brief on behalf of an FTO, while warning that “there is no natural stopping place” for the statute’s scope.

You present your research to your firm’s higher-ups, and they find the idea that writing an amicus brief constitutes “material support for terrorism” outrageous and probably unconstitutional. They would like to challenge the statute as applied to lawyers representing clients; if the challenge is successful, they will represent the Beneficent Society. (Procedurally, the firm would ask for a preenforcement injunction against enforcing the statute; in Holder the courts held that the plaintiffs had standing in a similar request.) What might be the basis for arguing that lawyers representing clients are something special?

Notes and Questions

Stewart’s case received widespread attention, in part because Stewart herself was an appealing sixty-two-year-old grandmother who had no ideological sympathy with Islamic terrorism. In an interview, Stewart said, “There are a hundred lawyers who would do exactly what I did. There are a million lawyers who would do almost exactly what I did. Because this is the way you have to represent clients.”90 Criminal defender and legal theorist Abbe Smith expands on this point:

Defense lawyers often become intensely identified with clients, perhaps especially so when the client is a social or political pariah. When everyone else is against the client the lawyer “pumps up the volume” a bit. Add to this the criminal defender’s tendency to flaunt authority, and you get defenders who are willing to break a rule here or there, especially when it comes to autocratic places like jails and prisons. Stewart may not have meant to further violence when she communicated her client’s message; she may have seen herself as resisting overly harsh prison rules and asserting what she deemed to be her client’s fundamental right of self-expression.

The truth is zealous lawyers contemplate getting in a little trouble from time to time, though they do not expect to be criminally prosecuted. What defender has not on occasion violated a prison rule, passed on a communication they probably should not have passed on, attempted to soften an otherwise harsh criminal justice system? More importantly, what zealous, devoted defender refrains from speaking for clients simply because they are told not to?

I find it hard to believe that Stewart acted as she did to promote or carry out terrorism in the name of the suffering people of Egypt. Prior to agreeing to represent the sheik—about which Stewart initially had misgivings—there is no indication that Stewart knew anything about, much less passionately believed in the sheik’s cause. There is no indication she had especially strong views about politics in the Middle East.91

What follows from Smith’s argument? To what extent does it mitigate Stewart’s conduct? One reason her case attracted such concern is that defense attorneys worried that it signaled a crackdown on lawyers willing to defend terrorists, who were already suffering substantial public vilification.92 Stewart was herself subject to death threats.

2.Should a defender be compelled to sign an agreement not to violate SAMs? At least one federal judge thought not. William Young, the trial judge in the case of Richard Reid—the Al Qaeda “shoe bomber” who attempted to detonate explosives packed into his sneakers on board an airliner—declined 169to require Reid’s counsel to sign an affirmation that they would abide by SAMs, reasoning:

The affirmation here unilaterally imposed by the Marshals Service as a condition of the free exercise of Reid’s Sixth Amendment right to consult with his attorneys fundamentally and impermissibly intrudes on the proper role of defense counsel. They are zealously to defend Reid to the best of their professional skill without the necessity of affirming their bona fides to the government. . . .

Nor is this all. The Court takes judicial notice, pursuant to Federal Rule of Evidence 201, that the government has indicted attorney Lynne Stewart, Esq., inter alia, for violating [the false statements statute], in that having signed the required affirmation, she violated the SAMs applicable to one Sheikh Abdel Rahman, and therefore knowingly made a false statement. Evidently, the government theorizes that the affirmation was knowingly false when made. Whatever the merits of this indictment, its chilling effect on those courageous attorneys who represent society’s most despised outcasts cannot be gainsaid.93

Although Judge Young’s opinion makes extensive reference to the Sixth Amendment right to counsel and suggests that he might have found unconstitutional the requirement that Reid’s counsel sign an agreement to abide by the SAMs, he did not reach the constitutional issue because the government agreed not to require Reid’s counsel to sign. Should the Sixth Amendment prevent the government from using SAMs?

3.Lynne Stewart was released from prison in December 2013 under a “compassionate release” after the court found that she had a limited risk of recidivism and, because she was battling terminal cancer. She died in 2017.